| Uribe-Zapata v Capallan |
| 2008 NY Slip Op 07116 [54 AD3d 936] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Matilde Uribe-Zapata, Respondent, et al.,Plaintiff, v Antonio Capallan, Appellant. |
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In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Schulman, J.), dated January 11, 2008, which denied hismotion for summary judgment dismissing the complaint insofar as asserted by the plaintiffMatilde Uribe-Zapata on the ground that she did not sustain a serious injury within the meaningof Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint insofar as asserted by the plaintiff MatildeUribe-Zapata on the ground that she did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) is granted.
The defendant met his prima facie burden of showing that the plaintiff Matilde Uribe-Zapata(hereinafter the plaintiff) did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).
In opposition, the plaintiff failed to raise a triable issue of fact. The magnetic resonanceimaging (hereinafter MRI) reports concerning the plaintiff's lumbar spine and right knee lackedprobative value since they were unaffirmed (see Verette v Zia, 44 AD3d 747, 748 [2007]; see also Grasso vAngerami, 79 NY2d 813, 814-815 [1991]; Pagano v Kingsbury, 182 AD2d 268, 270[1992]). In addition, the affirmation of the plaintiff's treating physician lacked probative valuesince he relied on the unsworn [*2]MRI report concerning thelumbar spine in arriving at the plaintiff's diagnosis (see Malave v Basikov, 45 AD3d 539, 540 [2007]; Verette vZia, 44 AD3d at 748; Furrs vGriffith, 43 AD3d 389 [2007]; see also Friedman v U-Haul Truck Rental, 216AD2d 266, 266-267 [1995]). Finally, the self-serving affidavit of the plaintiff was insufficient toshow that she sustained a serious injury as a result of the subject accident (see Michel v Blake, 52 AD3d 486,486-487 [2008]; Shvartsman vVildman, 47 AD3d 700, 701 [2008]; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]). Theplaintiff failed to proffer competent medical evidence that she sustained a medically-determinedinjury of a nonpermanent nature which prevented her, for 90 of the 180 days following thesubject accident, from performing her usual and customary activities (see Sainte-Aime vHo, 274 AD2d 569, 569-570 [2000]). Fisher, J.P., Lifson, Covello, Balkin and Belen, JJ.,concur.