| Singh v Mohamed |
| 2008 NY Slip Op 07113 [54 AD3d 933] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Jasvir Singh, Appellant, v Abdu Mohamed et al.,Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Kings County (Ruchelsman, J.), dated July 10, 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), and (2), aslimited by his brief, from so much of an order of the same court entered November 1, 2007 asdenied that branch of his motion which was for leave to renew.
Ordered that the order dated July 10, 2007 is affirmed; and it is further,
Ordered that the order entered November 1, 2007 is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the defendants.
Contrary to the plaintiff's contentions on appeal, the defendants, on their motion for summaryjudgment, met their prima facie burden by showing that he did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Tourev Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955,956-957 [1992]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact. The only affirmed medical report submitted by Dr. Ali Guy, the plaintiff's treatingphysician, was dated March 10, 2007, which included his findings from an examinationconducted on February 20, 2007. Dr. Guy's other reports, dated May 3, 2005 and May 27, 2005,were unaffirmed and therefore without any probative value in opposing the defendants' motion(see Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514[2007]; see also Grasso v Angerami, 79 NY2d 813 [1991]; Pagano v Kingsbury,182 AD2d 268, 270 [1992]). The plaintiff's hospital records were uncertified and thus alsowithout any probative value (see Mejia vDeRose, 35 AD3d 407 [2006]).
Dr. Guy's March 10, 2007 report was insufficient, standing alone, to raise a triable issue offact. While Dr. Guy provided recent range-of-motion findings (based upon his Feb. 20, 2007examination), which showed that the plaintiff had significant range-of-motion limitations in thelumbar and cervical regions of his spine, neither Dr. Guy nor the plaintiff proffered competentobjective medical evidence that showed range-of-motion limitations in those regions of the spinethat were roughly contemporaneous with the subject accident (see Perdomo v Scott, 50 AD3d1115 [2008]; Ferraro v Ridge CarServ., 49 AD3d 498 [2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]; Borgella v D & L Taxi Corp., 38 AD3d701, 702 [2007]). Thus, in the absence of contemporaneous findings of range-of-motionlimitations in his spine, the plaintiff was unable to establish the duration of his alleged spinalinjuries (see Ferraro v Ridge CarServ., 49 AD3d 498 [2008]).
The plaintiff also failed to proffer competent medical evidence that he sustained amedically-determined injury of a nonpermanent nature which prevented him from performing hisusual and customary activities for 90 of the 180 days following the subject accident (see Silla v Mohammad, 52 AD3d681, 683 [2008]; Casas vMontero, 48 AD3d 728, 730 [2008]; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007];Sainte-Aime v Ho, 274 AD2d 569 [2000]).
The Supreme Court providently exercised its discretion in denying that branch of theplaintiff's motion which was for leave to renew. Neither the plaintiff nor Dr. Guy provided areasonable justification as to why the doctor's reports containing contemporaneousrange-of-motion findings in the plaintiff's lumbar and cervical regions of the spine, were not inproper form when submitted in opposition to the initial motion (see Doumanis v Conzo,265 AD2d 296, 297 [1999]; cf. Simpsonv Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]). Rivera, J.P., Florio, Angiolillo,McCarthy and Chambers, JJ., concur.