MAGARIN v. KROPF

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

Giovanni MAGARIN, et al., appellants, v. Joseph KROPF, respondent.

Decided: December 27, 2005

ROBERT W. SCHMIDT, J.P., SONDRA MILLER, WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and ROBERT J. LUNN, JJ. Carey S. Bernstein, P.C., Brooklyn, N.Y. (Jonathan Tabar of counsel), for appellants. Lynch & Lynch, LLP, Brooklyn, N.Y. (Amy Crawford of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Weiss, J.), dated September 15, 2004, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiffs' arguments, the defendant's evidence, which consisted of the affirmed medical reports of his examining physician and the respective plaintiffs' deposition testimony, was sufficient to establish a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (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, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Batista v. Olivo, 17 A.D.3d 494, 795 N.Y.S.2d 54;  Grant v. Fofana, 10 A.D.3d 446, 781 N.Y.S.2d 160).   The plaintiffs' evidence, on the other hand, was insufficient to raise a triable issue of fact.   Although the plaintiffs' physician reported finding restrictions in the ranges of motion of the cervical and lumbar regions of the plaintiffs' spines when he examined them in May of 2004, he failed to reconcile these findings with his findings of little or no restrictions when he examined the plaintiffs just six months earlier (see Powell v. Hurdle, 214 A.D.2d 720, 625 N.Y.S.2d 634).   Furthermore, the plaintiffs' physician relied upon unsworn medical reports and records provided by others in arriving at his determination (see Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765;  see also Mahoney v. Zerillo, 6 A.D.3d 403, 774 N.Y.S.2d 378;  D'Amato v. Mandello, 2 A.D.3d 482, 767 N.Y.S.2d 894;  Perovich v. Liotta, 273 A.D.2d 367, 710 N.Y.S.2d 908;  Williams v. Hughes, 256 A.D.2d 461, 682 N.Y.S.2d 401;  Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853).

Moreover, there was no competent medical evidence to support the plaintiffs' claim that as a result of the subject accident they were unable to perform substantially all of their usual and customary daily activities for not less than 90 of the first 180 days following the accident (see Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  see also Davis v. New York City Tr. Auth., 294 A.D.2d 531, 742 N.Y.S.2d 658;  Arshad v. Gomer, 268 A.D.2d 450, 701 N.Y.S.2d 919).

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

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