SMITH v. GIUFFRE (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated July 22, 2020.  The order granted the defendant's 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) as a result of the subject accident.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident that occurred on September 16, 2016.  The defendant moved 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) as a result of the subject accident.  In an order dated July 22, 2020, the Supreme Court granted the defendant's motion, and the plaintiff appeals.

The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v. Avis Rent A Car Sys., Inc., 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).  The defendant submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and thoracic regions of the plaintiff's spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180).  In opposition, the plaintiff failed to raise a triable issue of fact.  The medical reports and records submitted by the plaintiff were neither sworn nor affirmed and, thus, were inadmissible (see Grasso v. Angerami, 79 N.Y.2d 813, 814–815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Nicholson v. Kwarteng, 180 A.D.3d 695, 696, 115 N.Y.S.3d 707).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.