NEWTON v. DRAYTON

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Supreme Court, Appellate Division, First Department, New York.

Michelle Darnley NEWTON, Plaintiff-Appellant, v. William H. DRAYTON, et al., Defendants-Respondents.

Decided: May 27, 2003

BUCKLEY, P.J., TOM, ELLERIN, LERNER and FRIEDMAN, JJ. Michael I. Quintana, for Plaintiff-Appellant. Robert L. Boydstun, John P. Harris, for Defendants-Respondents.

Order, Supreme Court, New York County (Milton Tingling, J.), entered May 21, 2002, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants permissibly relied on the unsworn reports of plaintiff's doctors to satisfy their initial burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see McNair v. Ofori, 198 A.D.2d 47, 604 N.Y.S.2d 727).   Contrary to plaintiff's opposition, nothing in these reports tends to show that trauma experienced in the accident made an abortion advisable.1  These same reports also show no significant deficits in range of motion as of five weeks after the accident, and again as of five months after the accident.   Nor does the MRI showing bulging discs a month after the accident raise an issue of fact as to serious injury, absent objective medical evidence, in admissible form (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76), of the degree and duration of any resulting physical limitations (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Rangel-Vargas v. Vurchio, 289 A.D.2d 92, 735 N.Y.S.2d 76).

FOOTNOTES

1.   Inexplicably, plaintiff failed to submit the medical records of the clinic where she allegedly received such advice, despite two court orders to do so.