| Singh v DiSalvo |
| 2008 NY Slip Op 01741 [48 AD3d 788] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Gharpaul Singh, Appellant, v Anthony J. DiSalvo et al.,Respondents. |
—[*1] Martyn, Toher & Martyn, Mineola, N.Y. (Brian L. Smith of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Grays, J.), dated February 1, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint on the ground that he did notsustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants met their prima facie burden of showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (cf. Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff failed to raise a triable issue offact. Initially, the unaffirmed medical reports submitted by the plaintiff in opposition to thedefendants' motion were without any probative value (see Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo vPenna, 42 AD3d 514 [2007]; see also Grasso v Angerami, 79 NY2d 813, 814 [1991];Pagano v Kingsbury, 182 AD2d 268 [1992]). The affidavit of the plaintiff's examiningorthopedic surgeon, as well as his annexed report, failed to raise a triable issue of fact as towhether the plaintiff sustained a serious injury as a result of the subject accident. The surgeonadmitted in his affidavit that he relied upon the unsworn reports of others in coming to hisconclusions (see Malave v Basikov, 45 AD3d 539 [2007]; Govori v Agate Corp.,44 AD3d 821 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Furrs v Griffith,43 AD3d 389 [2007]; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267[1995]). Under the circumstances, the plaintiff failed to proffer competent medical evidence thathe sustained a medically-determined injury of a [*2]nonpermanent nature which prevented him, for 90 of the 180 daysfollowing the subject accident, from performing his usual and customary activities (seeRoman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho, 274AD2d 569 [2000]). Moreover, the plaintiff failed to adequately explain the lengthy gap in histreatment evident in the record (see McNeil v Dixon, 9 AD3d 481 [2004]). Rivera, J.P.,Lifson, Ritter and Carni, JJ., concur.