| Vasquez v John Doe #1 |
| 2010 NY Slip Op 04368 [73 AD3d 1033] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Jose Vasquez, Respondent, v John Doe #1, Defendant, andPierre M. Colvert, Appellant. |
—[*1] Cherny & Podolsky, PLLC, Brooklyn, N.Y. (Steven V. Podolsky of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Pierre M. Colvertappeals from an order of the Supreme Court, Kings County (Bayne, J.), dated December 14,2009, which denied his motion for summary judgment dismissing the complaint insofar asasserted against him on the ground that the plaintiff did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantPierre M. Colvert for summary judgment dismissing the complaint insofar as asserted againsthim on the ground that the plaintiff did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) is granted.
The defendant Pierre M. Colvert met his prima facie burden of showing that the plaintiff didnot sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result ofthe subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddyv Eyler, 79 NY2d 955 [1992]). In opposition, the plaintiff failed to raise a triable issue offact.
The reports of the plaintiff's treating physician, Dr. Benjamin Cortijo, which were notsummarized in the doctor's affirmation or referenced therein, as well as the plaintiff's hospitalrecords, magnetic resonance imaging (hereinafter MRI) reports, and the records and reportsconcerning the plaintiff's physical therapy and chiropractic treatment were all unaffirmed oruncertified, and thus, failed to raise a triable issue of fact (see Grasso v Angerami, 79NY2d 813 [1991]; Lozusko v Miller, 72 AD3d 908 [2010]; Bleszcz v Hiscock, 69 AD3d 890[2010]; Singh v Mohamed, 54AD3d 933 [2008]; Verette vZia, 44 AD3d 747 [2007]; Nociforo v Penna, 42 AD3d 514 [2007]; Mejia v DeRose, 35 AD3d 407[2006]).
The affirmation of Dr. Cortijo also was without probative value in opposing the motionsince, in arriving at his conclusions, Dr. Cortijo clearly relied on the unsworn MRI reportsauthored by [*2]another physician (see Vickers v Francis, 63 AD3d1150 [2009]; Magid v LincolnServs. Corp., 60 AD3d 1008 [2009]; Sorto v Morales, 55 AD3d 718 [2008]; Malave v Basikov, 45 AD3d 539[2007]; Verette v Zia, 44 AD3d747 [2007]; Furrs v Griffith, 43AD3d 389 [2007]). Moreover, although Dr. Cortijo reported finding restrictions in theranges of motion of the plaintiff's left knee, cervical spine, and lumbar spine during a May 2009examination, he failed to reconcile those findings with his findings of little to no restrictions inthose regions when he examined the plaintiff in September 2007 and November 2007 (see Carrillo v DiPaola, 56 AD3d712 [2008]; Felix v Wildred,54 AD3d 891 [2008]; Magarin vKropf, 24 AD3d 733 [2005]).
The plaintiff also failed to adequately explain the cessation of his medical treatment three tofour months postaccident (seePommells v Perez, 4 NY3d 566, 574 [2005]; Haber v Ullah, 69 AD3d 796 [2010]).
Finally, the plaintiff failed to submit competent medical evidence that the injuries allegedlysustained by him as a result of the subject accident rendered him unable to perform substantiallyall of his daily activities for not less than 90 days of the first 180 days thereafter (see Menaker v White Express CabCorp., 68 AD3d 1069 [2009]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).Dillon, J.P., Santucci, Balkin, Belen and Sgroi, JJ., concur.