EVANS v. MOHAMMAD (1997)

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Garry, J.), dated September 10, 1996, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain serious injuries within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

In response to the defendants' motion for summary judgment, the plaintiffs submitted, inter alia, affidavits of their chiropractor, Joseph Shtab, who averred that as a result of the accident each plaintiff suffered objectively measured degrees of limitation in the range of motion of their respective necks and backs.   It was Shtab's opinion that the damage to the plaintiffs' respective spinal and muscular systems, with the consequent restrictions of mobility, was permanent.   However, it appears that the only time he examined either plaintiff was on November 29, 1994, some 11 days after their accident.   Shtab's projections of permanent limitations have no probative value in the absence of a recent examination.   The plaintiffs' unsworn doctors' reports, which were appended to Shtab's affidavits, are undated, with the result that “there was insufficient proof of the duration of the alleged impairment(s)” so to create a triable issue of fact with respect to whether either of the plaintiffs suffered a “serious injury” as defined in Insurance Law § 5102(d) ( Beckett v. Conte, 176 A.D.2d 774, 775, 575 N.Y.S.2d 102;  see, e.g., Letellier v. Walker, 222 A.D.2d 658, 635 N.Y.S.2d 682;  Atkins v. Metropolitan Suburban Bus Auth., 222 A.D.2d 390, 634 N.Y.S.2d 522;   Philpotts v. Petrovic, 160 A.D.2d 856, 554 N.Y.S.2d 289).

MEMORANDUM BY THE COURT.