| McNeil v New York City Tr. Auth. |
| 2009 NY Slip Op 02573 [60 AD3d 1018] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Cheryl McNeil, Respondent, v New York City TransitAuthority et al., Appellants. |
—[*1] Lurie & Flatow, P.C., New York, N.Y. (Jay Flatow of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), datedFebruary 5, 2008, as denied their motion for summary judgment dismissing the complaint on theground that the plaintiff 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 defendants satisfied their burden of establishing, prima facie, that the plaintiff did notsustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d 955, 956-957 [1992]). In opposition, the plaintiff relied upon variousmedical records, as well as the affirmed medical report of Dr. John Murphy, who treated theplaintiff after her accident. The plaintiff's hospital records and EMG testing report fromDecember 22, 2003, were unsworn and therefore without any probative value (see Sapienza vRuggiero, 57 AD3d 643 [2008]; Choi Ping Wong v Innocent, 54 AD3d 384 [2008]),and portions of Dr. Murphy's affirmed medical report dated November 19, 2007, must similarlybe disregarded because they recite unsworn findings of other doctors (see Sorto v Morales,55 AD3d 718 [2008]; Malave v Basikov, 45 AD3d 539 [2007]; Furrs v Griffith,43 AD3d 389 [2007]; see also Friedman v U-Haul Truck Rental, 216 AD2d 266,267 [1995]). Nevertheless, Dr. Murphy found, on the basis of his physical examination of theplaintiff, that she had a decreased range of motion in her lumbar spine following the date of theaccident and for four years thereafter. In response to the conclusory [*2]statement by the defendant's orthopedic expert that the plaintiff"[had] significant problems preceding the alleged incident," and the defendant's radiologist'sdetermination that the plaintiff suffers from a chronic degenerative condition of the lumbarspine, Dr. Murphy opined, on the basis of his review of pre-accident and post-accident imaging,that the plaintiff's injuries were caused or, at least, aggravated by the accident. Thus, Dr.Murphy's conclusion that the plaintiff's injuries constitute a permanent consequential limitationof use of her lumbar spine was sufficient to raise a triable issue of fact as to whether the plaintiffsustained a serious injury under the significant limitation of use or the permanent consequentiallimitation of use category of Insurance Law § 5102 (d) as a result of the subject accident(see Altreche v Gilmar Masonry Corp., 49 AD3d 479 [2008]; Nigro v Kovac, 45AD3d 547-548). Spolzino, J.P., Ritter, Covello and Belen, JJ., concur.