| Scotto v Suh |
| 2008 NY Slip Op 03629 [50 AD3d 1012] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Frank Scotto, Appellant, v Ah Ram Suh,Respondent. |
—[*1] Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Debra A. Kellman of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated May1, 2007, as granted the defendant's motion for summary judgment dismissing the complaint onthe ground that he did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant met his prima facie burden of establishing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of the subjectaccident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]).
In opposition, the plaintiff failed to raise a triable issue of fact. The reports of Dr. Arovas andDr. Camp were unsworn, and hence, without probative value (see Patterson v NY Alarm Response Corp., 45 AD3d 656[2007]; Verette v Zia, 44 AD3d747, 748 [2007]). The proffered hospital records merely reflect neck strain, which does notconstitute a serious injury within the meaning of Insurance Law § 5102 (d) (see Washington v Cross, 48 AD3d457 [2008]). The affirmation and report of Dr. Khabie failed to proximately relate anyparticular findings to the subject accident (see Vishnevsky v Glassberg, 29 AD3d 680, 681 [2006];Shepley v Helmerson, 306 AD2d 267 [2003]). The reports of Dr. Mendoza, Dr. ScottJones, Dr. Nicholas Jones, and Dr. Petrucci failed to demonstrate cervical spine or left shoulderrange of motion limitations roughly contemporaneous with the subject accident (see [*2]D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]; Morales v Daves, 43 AD3d 1118[2007]; Rodriguez v Cesar, 40AD3d 731, 733 [2007]). The MRI reports of Dr. Waxman and Dr. Diamond showing a discherniation at C6-7 and a partial left shoulder rotator cuff tear fail to establish the extent of thealleged physical limitations resulting from the injury and their durations (see Casas v Montero, 48 AD3d728 [2008]; Shvartsman vVildman, 47 AD3d 700 [2008]; Tobias v Chupenko, 41 AD3d 583, 584 [2007]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Spolzino, J.P., Ritter, Dillon, Balkin and Leventhal, JJ.,concur.