DUKE v. SAURELIS

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

Angela DUKE, respondent, v. Paul SAURELIS, appellant.

Decided: June 26, 2007

WILLIAM F. MASTRO, J.P., DAVID S. RITTER, PETER B. SKELOS, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellant. Fredric Lewis, New York, N.Y. (Nicholas W. Kowalchyn of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Held, J.), dated November 20, 2006, which denied his 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, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendant made a prima facie showing that the plaintiff did not sustain 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).   In opposition, the plaintiff failed to raise a triable issue of fact.

The affirmation of the plaintiff's treating physician was insufficient to raise a triable issue of fact since he failed to adequately quantify the restrictions he found in the plaintiff's cervical and lumbar range of motion at his initial examinations of the plaintiff near the time of the accident (see Desamour v. New York City Tr. Auth., 8 A.D.3d 326, 777 N.Y.S.2d 706;  Ocasio v. Henry, 276 A.D.2d 611, 714 N.Y.S.2d 139).   The self-serving affidavit of the plaintiff and her deposition testimony were insufficient to show that she sustained a serious injury from the accident since there was insufficient objective medical evidence to show that she sustained a serious injury (see Yakubov v. CG Trans Corp., 30 A.D.3d 509, 817 N.Y.S.2d 353;  Davis v. New York City Tr. Auth., 294 A.D.2d 531, 742 N.Y.S.2d 658;  Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133).   The remaining submissions of the plaintiff were without probative value in opposing the motion since they were unsworn, unaffirmed, or uncertified (see Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Felix v. New York City Tr. Auth., 32 A.D.3d 527, 528, 819 N.Y.S.2d 835;  Yakubov v. CG Trans Corp., supra;  Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692;  see also CPLR 4518[c] ).

Moreover, the plaintiff failed to raise a triable issue of fact as to her alleged inability to perform substantially all of her daily activities for not less than 90 of the first 180 days following the accident as a result of the accident (see Sainte-Aime v. Ho, supra ).

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