| Vickers v Francis |
| 2009 NY Slip Op 05540 [63 AD3d 1150] |
| June 30, 2009 |
| Appellate Division, Second Department |
| Jamice L. Vickers, Respondent, v Robert A. Francis et al.,Defendants, and Redha Benmebrouk et al., Appellants. |
—[*1] Mark E. Weinberger, P.C., Rockville Centre, N.Y. (Marc J. Musman of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Redha Benmebrouk andJose A. Negron appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Ambrosio, J.), dated September 22, 2008, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theappellants' motion for summary judgment dismissing the complaint insofar as asserted againstthem is granted.
The appellants met their 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 offact.
Initially, the X ray report dated September 22, 2006, the magnetic resonance imaging(hereinafter MRI) reports of Dr. Robert Diamond, the medical records from Alliance MedicalOffice, the plaintiff's emergency room and hospital records, and the reports of Dr. Nunzio Saulledated August 31, 2006, and October 19, 2006, were not in admissible form because they wereunsworn (see Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; McNeil v NewYork City Tr. Auth., 60 AD3d 1018 [2009]; Sapienza v Ruggiero, 57 AD3d 643,644 [2008]; Uribe-Zapata v Capallan, 54 AD3d 936, 937 [2008]; Choi Ping Wong vInnocent, 54 AD3d 384, 385 [2008]).
The affirmed medical reports of Dr. Saulle were insufficient to raise a triable issue of fact asto whether the plaintiff sustained a serious injury to her cervical or lumbar spine as a result of thesubject accident. Neither the plaintiff nor Dr. Saulle proffered competent objective medicalevidence revealing the existence of a significant limitation in either region of the plaintiff's spinethat [*2]was contemporaneous with the subject accident (seeLeeber v Ward, 55 AD3d 563 [2008]; Ferraro v Ridge Car Serv., 49 AD3d 498[2008]; D'Onofrio v Floton, Inc., 45 AD3d 525 [2007]). Furthermore, in reaching hisconclusion in his affirmed medical reports, Dr. Saulle clearly relied on the unsworn MRI reportsof Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008 [2009]; Sorto vMorales, 55 AD3d 718 [2008]; Malave v Basikov, 45 AD3d 539 [2007]; Verettev Zia, 44 AD3d 747 [2007]; Furrs v Griffith, 43 AD3d 389 [2007]; see alsoFriedman v U-Haul Truck Rental, 216 AD2d 266, 267 [1995]). Moreover, Dr. Saulle failedto address, in any of his affirmed reports, the fact that the plaintiff injured her neck and back in asubsequent accident in October 2007. His failure to address that accident and the resultinginjuries rendered speculative his conclusions that the range of motion limitations he noted in theplaintiff's cervical and lumbar regions after October 2007 were caused by the subject accident(see Donadio v Doukhnych, 55 AD3d 532 [2008]; Seck v Minigreen Hacking Corp.,53 AD3d 608 [2008]).
Lastly, the plaintiff failed to submit competent medical evidence that the injuries sheallegedly sustained in the subject accident rendered her unable to perform substantially all of herdaily activities for not less than 90 days of the first 180 days subsequent to the subject accident(see Roman v Fast Lane Car Serv., Inc., 46 AD3d 535 [2007]; Sainte-Aime v Ho,274 AD2d 569 [2000]). Rivera, J.P., Dillon, Covello, Eng and Hall, JJ., concur.