VERETTE v. ZIA (2007)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated October 31, 2006, as denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

 The defendants established, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).  In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's reliance on uncertified hospital records and unaffirmed magnetic resonance imaging reports failed to raise a triable issue of fact since those submissions were without probative value (see Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396;  Rodriguez v. Cesar, 40 A.D.3d 731, 835 N.Y.S.2d 438;  Phillips v. Zilinsky, 39 A.D.3d 728, 834 N.Y.S.2d 299;  Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722).  The affirmed medical report of the plaintiff's treating physician was also without probative value as she relied on the unsworn reports of others in reaching her conclusions about the plaintiff (see Phillips v. Zilinsky, 39 A.D.3d 728, 834 N.Y.S.2d 299;  Porto v. Blum, 39 A.D.3d 614, 833 N.Y.S.2d 245;  Iusmen v. Konopka, 38 A.D.3d 608, 831 N.Y.S.2d 530).  The self-serving affidavit of the plaintiff, on its own, failed to raise a triable issue of fact as to whether she sustained a serious injury (see Garcia v. Solbes, 41 A.D.3d 426, 838 N.Y.S.2d 146;  Felix v. New York City Tr. Auth., 32 A.D.3d 527, 819 N.Y.S.2d 835;  Fisher v. Williams, 289 A.D.2d 288, 734 N.Y.S.2d 497).  Moreover, the plaintiff failed to adequately explain the essential cessation of her physical therapy treatment five to six months post-accident (see Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380, 830 N.E.2d 278;  Berktas v. McMillian, 40 A.D.3d 563, 835 N.Y.S.2d 388;  Waring v. Guirguis, 39 A.D.3d 741, 834 N.Y.S.2d 290;  Phillips v. Zilinsky, 39 A.D.3d 728, 834 N.Y.S.2d 299).  Lastly, the plaintiff failed to submit any competent medical evidence that the injuries she sustained in the accident caused her to be unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396;  Felix v. New York City Tr. Auth., 32 A.D.3d 527, 819 N.Y.S.2d 835;  Sainte–Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).