| Lazu v Harlem Group, Inc. |
| 2011 NY Slip Op 07706 [89 AD3d 435] |
| November 1, 2011 |
| Appellate Division, First Department |
| Steven Lazu, Appellant, v Harlem Group, Inc., et al.,Respondents. |
—[*1]
Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Maryann Brigantti-Hughes, J.), entered on or aboutJuly 15, 2010, which, in an action for personal injuries sustained in a motor vehicle accident,granted defendants' motions for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Defendants established their prima facie entitlement to judgment as a matter of law bysubmitting evidence showing that plaintiff did not suffer a serious injury within the meaning ofInsurance Law § 5102 (d). In opposition, plaintiff failed to raise a triable issue of fact.
The record demonstrates that plaintiff failed to submit evidence in admissible form withfindings on his ranges of motion contemporaneous with the accident. Although the letter of histreating physician contained such contemporaneous findings, it was unsigned, and "[s]tatementsand reports by the injured party's examining and treating physicians that are unsworn or notaffirmed to be true under penalty of perjury do not meet the test of competent, admissiblemedical evidence sufficient to defeat a motion for summary judgment" (Migliaccio v Miruku, 56 AD3d393, 394 [2008]). Moreover, since the neurologist who examined plaintiff in response todefendants' motions relied on the treating physician's unsigned report, the conclusions based onthose unsworn statements were likewise inadmissible (see Clemmer v Drah Cab Corp., 74 AD3d 660, 661 [2010]; Hernandez v Almanzar, 32 AD3d360, 361 [2006]).
Furthermore, plaintiff's neurologist failed to address the findings of defendants' radiologistthat plaintiff had degenerative changes at the L4/5 and L5/S1 levels that preexisted the accident.It is noted that the findings of plaintiff's radiologist that discs L4-S1 "show desiccative changesconsistent with degenerative process" were consistent with the findings of defendants'radiologist, and supported the conclusion that plaintiff had a preexisting condition (see Valentin v Pomilla, 59 AD3d184, 186 [2009]).[*2]
Dismissal of plaintiff's 90/180-day claim was also proper.Plaintiff failed to submit medical proof in support of the claim that he was unable to performsubstantially all his activities of daily living for the requisite period (see Shu Chi Lam v Wang Dong, 84AD3d 515, 516 [2011]). Concur—Friedman, J.P., Catterson, Moskowitz, Freedmanand Abdus-Salaam, JJ.