Abreu v Virani

[*1] Abreu v Virani 2012 NY Slip Op 50628(U) Decided on April 4, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and ALIOTTA, JJ
2011-666 Q C.

Caroline Abreu, Appellant,

against

Sohail S. Virani, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 7, 2010. The order granted the branch of defendant's motion seeking summary judgment dismissing the complaint on the ground of lack of serious injury. The appeal is deemed to be from a judgment of the same court entered February 1, 2011, pursuant to the December 7, 2010 order, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this personal injury action arising out of a motor vehicle accident in 2006, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury as defined by Insurance Law § 5102 (d) and on the additional ground that defendant was not liable for the accident. The Civil Court granted the branch of defendant's motion seeking summary judgment on the threshold issue and did not reach the branch of defendant's motion seeking summary judgment based on liability. A judgment was subsequently entered, pursuant to the order, dismissing the complaint, from which plaintiff's appeal from the order is deemed to have been taken (see CPLR 5501 [c]).

Defendant met his prima facie burden of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's doctor did not set forth the objective tests he had performed to arrive at his conclusion that plaintiff had restricted ranges of motion in her spine (see Resek v Morreale, 74 AD3d 1043 [2010]; LaMarre v Michelle Taxi, Inc., 60 AD3d 911 [2009]). Additionally, he improperly relied upon unaffirmed magnetic resonance imaging reports in determining that plaintiff's injuries were related to the trauma (see Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's doctor failed to address the findings of defendant's radiologist, who had concluded that the injuries to the cervical and lumbar regions of plaintiff's spine were degenerative in nature and unrelated to the subject accident (see Larson v Delgado, 71 AD3d 739 [2010]). The hospital records and other medical reports submitted by plaintiff were inadmissible since they were uncertified and unsworn (see Gnahore v Gonzalez, 73 AD3d 690 [2010]). Furthermore, plaintiff failed to proffer competent [*2]medical evidence that the injuries she had sustained rendered her unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the accident in question (see Ciancio v Nolan, 65 AD3d 1273 [2009]; Sainte-Aime v Ho, 274 AD2d 569 [2000]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Aliotta, JJ., concur.
Decision Date: April 04, 2012