The defendants established, prima facie, that the injuries the plaintiff allegedly sustained either were not serious within the meaning of Insurance Law ยง 5102 (d) or were not the result of the subject motor vehicle accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345, 352; Gaddy v Eyler, 79 NY2d 955, 957). Although "`a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" ( Taranto v McCaffrey, 40 AD3d 626, 627, quoting Bissonette v Compo, 307 AD2d 673, 674), any psychological condition or depression sustained by the plaintiff was found by the defendants' neurological expert to be unrelated to the subject motor vehicle accident, in light of detailed medical records prepared by the plaintiffs own treating physician establishing that her depressive condition had continually existed since 2000. The evidence submitted by the plaintiff in opposition to the defendants' motion failed to raise a triable issue of fact ( see Olson v Russell, 35 AD3d 684). The affidavit submitted by the plaintiffs treating neurologist, aside from relying in part upon an unsworn EEG report of another physician ( see Olson v Russell, 35 AD3d 684, 685; Magarin v Kropf, 24 AD3d 733, 734; Friedman v U-Haul Truck Rental, 216 AD2d 266, 266-267), sets forth a diagnosis of post-traumatic encephalopathy and concussion based only upon the plaintiffs subjective complaints, as all admissible objective test results were normal or inconclusive ( see Franchini v Palmieri, 1 NY3d 536, 537). The plaintiffs remaining contentions are without merit.
iff or an adequate explanation must be offered in the absence of a recent examination. See Hodder v. U.S., 328 F.Supp.2d 335, 349 (E.D.N.Y.2004) ( โ[T]here must be a recent examination of [the] plaintiff on which the objective medical findings have been made; any significant lapse of time between the cessation of the plaintiff's medical treatments after the accident and the physical examination conducted by his own expert must be adequately explained.โ) (citations and internal quotation marks omitted); Park v. Orellana, 49 A.D.3d 721, 722, 854 N.Y.S.2d 447, 448 (2d Dep't 2008) (โ[T]he evidence submitted by the plaintiff failed to raise a triable issue of fact as to whether he sustained a serious injury.... While the plaintiff's treating chiropractor opined in his affidavit that the plaintiff sustained permanent injuries and limitations to, among other things, his cervical spine as a result of the subject accident, this opinion was not based on a recent examination of the plaintiff.โ); Olson v. Russell, 35 A.D.3d 684, 685, 828 N.Y.S.2d 417, 419 (2d Dep't 2006) (finding that โthe plaintiffs failed to raise a triable issue of factโ in part because โ[w]hile the affirmation of the plaintiffs' examining orthopedic surgeon set forth range of motion findings that were compared to the normal range of motion and based on objective testing, it [was] unclear from that affirmation whether those findings were based on recent examinations of the injured plaintiffโ). Here, Dr. Gerard's affidavit was based upon muscle spasm observations and range of motion tests that occurred from January 7, 2010 to March 18, 2011. (Falk Aff., Ex. 2.)
ORDERED that the appeal is dismissed, without costs or disbursements. Although the appellant characterizes its motion as one for leave to reargue and renew, that motion was not based upon new facts and was, therefore, a motion for leave to reargue, the denial of which is not appealable (see Olson v Russell, 35 A.D.3d 684). Accordingly, the appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs or disbursements. Although the appellant characterizes its motion as one for leave to reargue and renew, that motion was not based upon new facts and was, therefore, a motion for leave to reargue, the denial of which is not appealable (see Olson v Russell, 35 A.D.3d 684). Accordingly, the appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs or disbursements. Although the appellant characterizes its motion as one for leave to reargue and renew, that motion was not based upon new facts and was, therefore, a motion for leave to reargue, the denial of which is not appealable (seeOlson v. Russell, 35 A.D.3d 684, 828 N.Y.S.2d 417 ). Accordingly, the appeal must be dismissed.
In addition, the defendants submitted evidence establishing that the plaintiffs alleged injuries did not prevent the plaintiff from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident ( see Licari v Elliott, 57 NY2d 230, 238). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a serious injury to the cervical or lumbar region of her spine within the meaning of Insurance Law ยง 5102 (d) as a result of the accident ( see Catalano v Kopmann, 73 AD3d 963, 964; Olson v Russell, 35 AD3d 684, 685). She also failed to raise a triable issue of fact as to whether the alleged injuries to her left ankle or left foot constituted a serious injury within the meaning of Insurance Law ยง 5102 (d) ( cf. Ranzie v Abdul-Massih, 28 AD3d 447, 448). Finally, she failed to raise a triable issue of fact as to whether she sustained a serious injury under the 90/180-day category of Insurance Law ยง 5102 (d) ( see Kauderer v Penta, 261 AD2d 365, 366; Traugott v Konig, 184 AD2d 765, 766).
In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs' evidence was comprised, inter alia, of unsworn medical reports ( see Grasso v Angerami, 79 NY2d 813, 814; Pagano v Kingsbury, 182 AD2d 268, 270), and the affirmation of the injured plaintiff's physician, which incorporated by reference, among other things, certain reports dated October 10, 2005 and March 10, 2006. It appears that the range of motion findings that were set forth in the October 10, 2005 report were not based on a recent examination of the injured plaintiff ( see Whitfield-Forbes v Pazmino, 36 AD3d 901; Olson v Russell, 35 AD3d 684). The March 10, 2006 report failed to compare the findings to the normal range of motion ( see Caracci v Miller, 34 AD3d 515). The injured plaintiff's physician improperly relied upon the unsworn medical reports and studies prepared by other doctors ( see Merisca v Alford, 243 AD2d 613, 614; Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Moreover, the plaintiffs' claim that the injured plaintiff was unable to perform substantially all of her daily activities for not less than 90 out of the first 180 days as a result of the subject accident was unsupported by competent medical evidence ( see D'Alba v Yong-Ae Choi, 33 AD3d 650, 651; Murray v Hartford, 23 AD3d 629, 629-630).
were caused by the subject motor vehicle accident, there was no admissible report of any examination roughly contemporaneous with the accident that established limitations at that time ( see Manning v Tejeda, 38 AD3d 622; Earl v Chaplet, 37 AD3d 520). Although there were range of motion tests conducted by Dr. Azriel Benaroya on October 7, 2003, shortly after the accident, they failed to show any limitations, and the report thereof was not even in admissible form ( see Grasso v Angerami, supra; Felix v New York City Tr. Auth., supra; Pagano v Kingsbury, supra). Finally, the affirmed report of Dr. Hausknecht reinforced the findings of the defense examiner Dr. Micheal J. Carciente, which supported the conclusion that the plaintiff did not sustain a medically-determined injury of a nonpermanent nature which prevented her, for 90 of the 180 days following the accident, from performing her usual and customary activities ( see Insurance Law ยง 5102 [d]; Zinger v Zylberberg, 35 AD3d 851, 852; Olson v Russell, 35 AD3d 684, 686; Sainte-Aime v Ho, supra).
ORDERED that the appeal is dismissed, without costs or disbursements. Although the appellant characterizes its motion as one for leave to reargue and renew, that motion was not based upon new facts and was, therefore, a motion for leave to reargue, the denial of which is not appealable (see Olson v Russell, 35 A.D.3d 684). Accordingly, the appeal must be dismissed.
ORDERED that the appeal is dismissed, without costs or disbursements. Although the appellant characterizes its motion as one for leave to reargue and renew, that motion was not based upon new facts and was, therefore, a motion for leave to reargue, the denial of which is not appealable (see Olson v Russell, 35 A.D.3d 684). Accordingly, the appeal must be dismissed.