GIANNINI v. CRUZ (2009)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated October 29, 2008, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Elena Giannini did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff Elena Giannini did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.

The defendant made a prima facie showing that the plaintiff Elena Giannini (hereinafter the injured 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, 350-352, 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 plaintiffs failed to raise a triable issue of fact.   Only the reports and affirmation of Dr. Raphael J. Osheroff, the injured plaintiff's treating physician, were affirmed, and the plaintiffs' remaining submissions concerning the injured plaintiff were unsworn and insufficient to raise a triable issue of fact (see Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Maffei v. Santiago, 63 A.D.3d 1011, 1011-1012, 886 N.Y.S.2d 29;  Niles v. Lam Pakie Ho, 61 A.D.3d 657, 659, 877 N.Y.S.2d 139;  Uribe-Zapata v. Capallan, 54 A.D.3d 936, 937, 864 N.Y.S.2d 118;  Patterson v. N.Y. Alarm Response Corp., 45 A.D.3d 656, 656, 850 N.Y.S.2d 114;  Verette v. Zia, 44 A.D.3d 747, 748, 844 N.Y.S.2d 71;  Nociforo v. Penna, 42 A.D.3d 514, 515, 840 N.Y.S.2d 396;   Pagano v. Kingsbury, 182 A.D.2d 268, 271, 587 N.Y.S.2d 692).   While Dr. Osheroff noted in his reports that the injured plaintiff had limitations in her cervical spine and left shoulder, he failed to either quantify those limitations or provide a qualitative assessment of those regions (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Taylor v. Flaherty, 65 A.D.3d 1328, 887 N.Y.S.2d 144;  Barnett v. Smith, 64 A.D.3d 669, 671, 883 N.Y.S.2d 573;  Shtesl v. Kokoros, 56 A.D.3d 544, 546, 867 N.Y.S.2d 492).   Furthermore, it is clear from Dr. Osheroff's affirmation that he relied primarily on range of motion findings from the unsworn reports of other physicians in arriving at his conclusions concerning the injured plaintiff (see Sorto v. Morales, 55 A.D.3d 718, 719, 868 N.Y.S.2d 67;  Malave v. Basikov, 45 A.D.3d 539, 540, 845 N.Y.S.2d 415;   Furrs v. Griffith, 43 A.D.3d 389, 390, 841 N.Y.S.2d 594;  see also Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 267, 627 N.Y.S.2d 765).

The plaintiffs also failed to set forth any competent medical evidence to establish that the injured plaintiff sustained a medically-determined injury of a nonpermanent nature which prevented her from performing her usual and customary activities for 90 of the 180 days following the subject accident (see Ciancio v. Nolan, 65 A.D.3d 1273, 885 N.Y.S.2d 767;  Shmerkovich v. Sitar Corp., 61 A.D.3d 843, 844, 878 N.Y.S.2d 86;  Sainte-Aime v. Ho, 274 A.D.2d 569, 570, 712 N.Y.S.2d 133).