Opinion
2007-333 Q C.
Decided April 14, 2008.
Consolidated appeal from orders of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), dated October 16, 2006 and January 22, 2007. The appeal from the October 16, 2006 order is deemed from the judgment of the same court, entered January 24, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 16, 2006 order granting defendant's motion for summary judgment, dismissed the complaint. The order dated January 22, 2007 denied plaintiff's motion seeking, among other things, to vacate the October 16, 2006 order.
Judgment affirmed without costs.
Appeal from order dated January 22, 2007 dismissed.
PRESENT: WESTON PATTERSON, J.P., GOLIA and RIOS, JJ.
At the outset, we note that the appeal from the order dated January 22, 2007 is dismissed because the right of direct appeal from that order terminated with the entry of judgment ( see Matter of Aho, 39 NY2d 241). However, the issues raised therein are brought up for review and have been considered on the appeal from the judgment.
In this action for personal injuries arising from a motor vehicle accident, defendant sought summary judgment dismissing plaintiff's complaint on the ground that plaintiff had not suffered a serious injury pursuant to Insurance Law § 5102 (d). In support of his motion, defendant submitted affirmed medical reports which set forth plaintiff's degrees of motion, compared those ranges to normal, and identified the objective tests used to assess those ranges of motion. The reports concluded that plaintiff had no significant limitations of movement. Thus, the court below properly found that defendant had established a prima facie showing that plaintiff had suffered no permanent consequential or significant limitation ( see e.g. Kaminski v Kawamoto, ___ AD3d ___, 2008 NY Slip Op 01919 [2d Dept 2008]). Defendant also established a prima facie showing as to the 90/180 day category by pointing to plaintiff's own deposition testimony in which she stated that she returned to work the week following the accident, continued to work full time without significant restrictions after that date, and missed only approximately 10 days due to the accident.
In opposition, plaintiff submitted a cross motion seeking denial of defendant's motion as well as summary judgment on the issue of liability. In support of her cross motion, plaintiff annexed an affirmed report by her physician. However, the copy of the report which was attached to the papers submitted to the court differed materially from the copy of the report attached to the papers submitted to defendant. The report submitted to the court set forth dates which defendant's copy omitted. Moreover, the two reports gave different results for the range of motion testing conducted at plaintiff's recent examination and gave different descriptions of the objective tests allegedly used to assess those ranges of motion. Accordingly, the court below properly refused to consider the report ( see CPLR 2214 [c]). Plaintiff's only other medical evidence was without probative value in opposing defendant's motion as it consisted of unsworn and unaffirmed reports and bills ( see e.g. Singh v DiSalvo, 48 AD3d 788 [2d Dept 2008]). Thus, plaintiff failed to submit any competent medical evidence establishing that she sustained a permanent consequential or significant limitation.
As to the 90/180 day category, the only admissible evidence offered by plaintiff in response to defendant's motion was her own affidavit in which she alleged that she was unable to perform her usual and customary duties for over nine months after the accident. However, as noted, plaintiff's own deposition testimony established, among other things, that plaintiff returned to work full time without any significant restrictions a few days after the accident. Thus, plaintiff failed to raise a triable issue of fact as to the 90/180 day category.
As plaintiff failed to raise any triable issues of fact as to the threshold question of serious injury, defendant's motion for summary judgment was properly granted. In light of our holding, the question of whether the court below should have considered plaintiff's cross motion on the issue of liability is moot.
Plaintiff's allegations of judicial "misconduct" are entirely unsupported by the record, and plaintiff's other contentions on appeal are without merit.
Weston Patterson, J.P., Golia and Rios, JJ., concur.