| Gonzales v Fiallo |
| 2008 NY Slip Op 00452 [47 AD3d 760] |
| January 22, 2008 |
| Appellate Division, Second Department |
| Reyna Gonzales, Appellant, v Carmen Fiallo,Respondent. |
—[*1] Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson, Peter James Johnson, Jr.,James P. Tenney, Joanne Filiberti, and Vincent Torregiano of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Kramer, J.), dated June 23, 2006, which granted that branchof the defendant's motion which was for summary judgment dismissing the complaint on theground that she did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is affirmed, with costs.
The defendant established her prima facie entitlement to judgment as a matter of law byestablishing that the plaintiff did not sustain a serious injury within the meaning of InsuranceLaw § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys.,98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Anyrestrictions in motion noted by the defendant's neurologist were adequately explained asself-imposed and unrelated to the accident, as part of the expert's qualitative assessment (seeToure v Avis Rent A Car Sys., 98 NY2d at 350).
On appeal, the plaintiff raises no argument that any of her submissions in opposition to thedefendant's motion were sufficient to raise a triable issue of fact. We note, however, that theunaffirmed and uncertified reports and records relied upon by the plaintiff are without probativevalue (see Rodriguez v Cesar, 40AD3d 731, 732-733 [2007]; Phillips v Zilinsky, 39 AD3d 728, 729 [2007]; Osgood v Martes, 39 AD3d 516[2007]; Borgella v D & L Taxi Corp.,38 AD3d 701, 702 [2007]). The affirmation of the plaintiff's treating physician islikewise without probative value as the physician's conclusions [*2]rely upon the unsworn reports of others (see Phillips v Zilinsky,39 AD3d at 729; Porto v Blum,39 AD3d 614, 615 [2007]; Marziotto v Striano, 38 AD3d 623, 624 [2007]; Iusmen v Konopka, 38 AD3d 608,609 [2007]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Santucci, Dillon andAngiolillo, JJ., concur.