| Choi Ping Wong v Innocent |
| 2008 NY Slip Op 06629 [54 AD3d 384] |
| August 19, 2008 |
| Appellate Division, Second Department |
| Choi Ping Wong, Appellant, v Pierre Innocent,Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Ambrosio, J.), dated June 18, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint on the ground that she didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendant met his 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 (see 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 of fact. Initially, the hospital recordsof the plaintiff, as well as the unaffirmed medical reports of Dr. Abraham Asmamaw, werewithout any probative value since they were unsworn (see Grasso v Angerami, 79 NY2d813 [1991]; Patterson v NY AlarmResponse Corp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514[2007]; Pagano v Kingsbury, 182 AD2d 268 [1992]; see also Mejia v DeRose, 35 AD3d 407 [2006]).
The submission of the affirmed magnetic resonance imaging reports of Dr. AyoobKhodadadi merely evinced that as of June 20, 2003, the plaintiff had a herniated disc at C5-C6and [*2]L3-L4, as well as tears in the supraspinatus tendon andanterior labrum of the left shoulder. The mere existence of a herniated disc, and even a tear in atendon, is not evidence of a serious injury in the absence of objective evidence of the extent ofthe alleged physical limitations resulting from the injury and its duration (see Cornelius v Cintas Corp., 50 AD3d1085 [2008]; Shvartsman vVildman, 47 AD3d 700 [2008]; Tobias v Chupenko, 41 AD3d 583 [2007]). The self-servingaffidavit of the plaintiff, as well as her deposition testimony, were also insufficient to raise atriable issue of fact (see Casas vMontero, 48 AD3d 728 [2008]; Shvartsman v Vildman, 47 AD3d 700 [2008]; Tobias v Chupenko, 41 AD3d 583[2007]).
Dr. Randolph Roserion, in his affirmation, failed to raise a triable issue of fact sufficient todefeat the defendant's establishment of entitlement to summary judgment. He relied uponunsworn medical reports in reaching his conclusions (see Malave v Basikov, 45 AD3d 539 [2007]; Verette v Zia, 44 AD3d 747[2007]), and neither his affirmation nor his medical report showed range of motion limitationsroughly contemporaneous with the subject accident (see D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]; Morales v Daves, 43 AD3d 1118[2007]; Rodriguez v Cesar, 40AD3d 731 [2007]).
Finally, none of the plaintiff's admissible submissions adequately explained a 3½ yeargap between when she stopped her initial treatment and her most recent examination (see Pommells v Perez, 4 NY3d566 [2005]; Singh v DiSalvo,48 AD3d 788 [2008]; Waring vGuirguis, 39 AD3d 741 [2007]).
The parties' remaining contentions have been rendered academic. Spolzino, J.P., Ritter,Dillon, Balkin and Leventhal, JJ., concur.