Opinion
2008-2144 Q C.
Decided January 29, 2010.
Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered September 15, 2008. The order denied defendant's motion for summary judgment.
ORDERED that the order is reversed without costs and defendant's motion for summary judgment dismissing the complaint is granted.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident. On February 10, 2006, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court denied the motion, finding that while defendant made a prima facie showing that plaintiff did not sustain a serious injury, plaintiff's submissions were sufficient to raise a triable issue of fact. This appeal by defendant ensued.
On appeal, the sole issue raised by defendant is that plaintiff failed to raise a triable issue of fact. We agree.
Four of the five medical reports submitted by plaintiff were without probative value since they were neither sworn to nor affirmed by plaintiff's physicians ( see Vickers v Francis, 63 AD3d 1150; Sapienza v Ruggiero, 57 AD3d 643). Although defendant's doctor listed two of these reports among the records which he had reviewed, he neither relied upon nor reported the findings contained therein and, thus, they may not be considered ( see Rodriguez v Huerfano, 46 AD3d 794; cf. Thompson v Saunders, 57 AD3d 971 ["[s]ince the defendant's doctor referred to the results" of the MRI studies, those results were properly before the court]). Furthermore, the fifth report, by plaintiff's examining physician, sworn to in March 2008 and referencing a February 2008 examination, failed to acknowledge or account for the back injuries which plaintiff testified that he had sustained in a prior motor vehicle accident. As a result, the doctor's finding that plaintiff's back injuries and limitations were caused solely by the subject accident was speculative ( see Cantave v Gelle, 60 AD3d 988; Moore v Sarwar, 29 AD3d 752). Moreover, plaintiff failed to demonstrate the existence of significant range of motion limitations in his cervical and lumbosacral spine that were contemporaneous with the subject accident ( see Knox v Lennihan, 65 AD3d 615; Niles v Lam Pakie Ho, 61 AD3d 657).
Finally, plaintiff failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident prevented him performing substantially all of his usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the accident ( see Insurance Law § 5102 [d]; Magid v Lincoln Servs. Corp., 60 AD3d 1008; Rabolt v Park, 50 AD3d 995).
Accordingly, defendant's motion for summary judgment dismissing the complaint should have been granted.
Pesce, P.J., Weston and Rios, JJ., concur.