| Giannini v Cruz |
| 2009 NY Slip Op 07982 [67 AD3d 638] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Elena Giannini et al., Respondents, v Antonio Cruz,Appellant. |
—[*1] David Katz & Associates, LLP, New York, N.Y. (Salvatore J. Sciangula of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Schmidt, J.), dated October 29, 2008, which deniedhis motion for summary judgment dismissing the complaint on the ground that the plaintiff ElenaGiannini did not sustain a serious injury within the meaning of 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 on the ground that the plaintiff Elena Giannini didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) is granted.
The defendant made a prima facie showing that the plaintiff Elena Giannini (hereinafter theinjured 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., 98 NY2d345, 350-352 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In opposition, theplaintiffs failed to raise a triable issue of fact. Only the reports and affirmation of Dr. Raphael J.Osheroff, the injured plaintiff's treating physician, were affirmed, and the plaintiffs' remainingsubmissions concerning the injured plaintiff were unsworn and insufficient to raise a triable issueof fact (see Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Maffei v Santiago, 63 AD3d1011, 1011-1012 [2009]; Niles vLam Pakie Ho, 61 AD3d 657, 659 [2009]; Uribe-Zapata v Capallan, 54 AD3d 936, 937 [2008]; Patterson v NY Alarm ResponseCorp., 45 AD3d 656 [2007]; Verette v Zia, 44 AD3d 747, 748 [2007]; Nociforo v Penna, 42 AD3d 514,515 [2007]; Pagano v Kingsbury, 182 AD2d 268, 271 [1992]). While Dr. Osheroff notedin his reports that the injured plaintiff had limitations in her cervical spine and left shoulder, hefailed to either quantify those limitations or provide a qualitative assessment of those regions(see Toure v Avis Rent A Car Sys., 98 NY2d at 350; Taylor v Flaherty, 65 AD3d 1328 [2009]; Barnett v Smith, 64 AD3d 669,671 [2009]; Shtesl v Kokoros, 56AD3d 544, 546 [2008]). Furthermore, it is clear from Dr. Osheroff's affirmation that herelied primarily on range of motion findings from the unsworn reports of other physicians inarriving at his conclusions concerning the injured plaintiff (see Sorto v Morales, 55 AD3d 718, 719 [2008]; Malave v Basikov, 45 AD3d 539,540 [2007]; Furrs v Griffith, 43AD3d 389, 390 [2007]; see also Friedman v U-Haul Truck Rental, 216 AD2d 266,267 [1995]).[*2]
The plaintiffs also failed to set forth any competentmedical evidence to establish that the injured plaintiff sustained a medically-determined injury ofa nonpermanent nature which prevented her from performing her usual and customary activitiesfor 90 of the 180 days following the subject accident (see Ciancio v Nolan, 65 AD3d 1273 [2009]; Shmerkovich v Sitar Corp., 61 AD3d843, 844 [2009]; Sainte-Aime v Ho, 274 AD2d 569, 570 [2000]). Rivera, J.P.,Miller, Balkin, Leventhal and Hall, JJ., concur.