ELDER v. STOKES

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

Ivor ELDER, respondent, v. Joeann STOKES, appellant.

Decided: December 26, 2006

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, PETER B. SKELOS and ROBERT J. LUNN, JJ. James P. Nunemaker, Jr., Uniondale, N.Y. (Gene W. Wiggins of counsel), for appellant. Peters Berger Koshel & Goldberg, P.C., Brooklyn, N.Y. (Marc A. Novick 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 (Johnson, J.), dated November 17, 2005, which denied her 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 established her prima facie entitlement to judgment as a matter of law by demonstrating that the 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, 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.   While the affirmed medical report of the plaintiff's examining physician noted limitations in the plaintiff's range of motion of his cervical and lumbar spine, based on a recent examination, this report failed to provide any medical proof that was contemporaneous with the subject accident that showed range of motion limitations in his spine (see Felix v. New York City Tr. Auth., 32 A.D.3d 527, 819 N.Y.S.2d 835;  Ramirez v. Parache, 31 A.D.3d 415, 818 N.Y.S.2d 238;  Bell v. Rameau, 29 A.D.3d 839, 814 N.Y.S.2d 534;  Ranzie v. Abdul-Massih, 28 A.D.3d 447, 813 N.Y.S.2d 473;  Li v. Woo Sung Yun, 27 A.D.3d 624, 812 N.Y.S.2d 604;  Suk Ching Yeung v. Rojas, 18 A.D.3d 863, 796 N.Y.S.2d 661;  Nemchyonok v. Peng Liu Ying, 2 A.D.3d 421, 767 N.Y.S.2d 811).   Moreover, the plaintiff's examining physician relied on the unsworn reports of others in reaching his conclusions (see Felix v. New York City Tr. Auth., supra;  Mahoney v. Zerillo, 6 A.D.3d 403, 774 N.Y.S.2d 378;  Friedman v. U-Haul Truck Rental, 216 A.D.2d 266, 627 N.Y.S.2d 765).   The remaining submissions of the plaintiff, with the exception of his own affidavit and hospital records, were without probative value in opposing the motion since they were unsworn or unaffirmed (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Felix v. New York City Tr. Auth., supra;  Bycinthe v. Kombos, 29 A.D.3d 845, 815 N.Y.S.2d 693;  Hernandez v. Taub, 19 A.D.3d 368, 796 N.Y.S.2d 169;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The plaintiff's hospital records, which were properly submitted in opposition since the defendant submitted the record in support of her motion (see Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 789 N.Y.S.2d 281), did not establish that the plaintiff sustained a serious injury.   In the absence of any admissible objective evidence of injury, the plaintiff's self-serving affidavit was insufficient to raise a triable issue of fact as to whether he sustained a serious injury (see Felix v. New York City Tr. Auth., supra;  Fisher v. Williams, 289 A.D.2d 288, 734 N.Y.S.2d 497;  see also Sainte-Aime v. Ho, 274 A.D.2d 569, 712 N.Y.S.2d 133;  DiNunzio v. County of Suffolk, 256 A.D.2d 498, 682 N.Y.S.2d 406).

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