Opinion
2001-09084
Submitted June 12, 2002.
September 18, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered September 17, 2001, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Peter Philippe did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Martyn, Toher, Esposito Martyn, Mineola, N.Y. (Joseph S. Holotka of counsel), for appellant.
Kaye Lenchner, Mineola, N.Y. (Mitchell J. Lenchner of counsel), for respondents.
Before: DAVID S. RITTER, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, DANIEL F. LUCIANO, BARRY A. COZIER, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The defendant established a prima facie case that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955). The evidence submitted by the plaintiffs in opposition to the motion was insufficient to raise a triable issue of fact. The affirmation of the injured plaintiff's physician improperly relied upon unsworn medical reports prepared by other physicians (see Palasek v. Misita, 289 A.D.2d 313; Delgado v. Hakim, 287 A.D.2d 592; Monaco v. Davenport, 277 A.D.2d 209). The affirmation also failed to specifically quantify the alleged loss of range of motion in the injured plaintiff's cervical and lumbosacral spines (see Merisca v. Alford, 243 A.D.2d 613; Wilkins v. Cameron, 214 A.D.2d 557; Stallone v. County of Suffolk, 209 A.D.2d 403).
Furthermore, the plaintiffs failed to come forward with sufficient evidence to raise an issue of fact as to whether the injured plaintiff sustained a medically-determined injury which prevented him from performing substantially all of his customary and usual daily activities during at least 90 out of the first 180 days following the accident (see Toure v. Avis Rent A Car Systems, supra; Savattere v. Barnathan, 280 A.D.2d 537; Jimenez v. Kambli, 272 A.D.2d 581; Marin v. Kakivelis, 251 A.D.2d 462; Rodriguez v. Kwan Cheung Tsui, 233 A.D.2d 382; Covington v. Cinnirella, 146 A.D.2d 565).
RITTER, J.P., FLORIO, GOLDSTEIN, LUCIANO and COZIER, JJ., concur.