Napoli v. Cunningham

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated May 18, 1999, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. In support of their motion for summary judgment, the defendants submitted the affirmation of an orthopedist who concluded, based upon a physical examination and objective medical tests, that the injured plaintiffs disc herniations were the result of a pre-existing degenerative condition rather than the subject automobile accident. This evidence was sufficient to establish a prima facie case that the injured plaintiff had not sustained a “serious injury” within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955), thus shifting the burden to the plaintiff to come forward with admissible proof to raise a triable question of fact (see, Grossman v Wright, 268 AD2d 79; Joseph v Cherry, 269 AD2d 498). The affidavit of the injured plaintiffs treating physician failed to raise a triable issue of fact because it improperly relied upon findings contained in the unsworn medical report of another physician (see, Diaz v Wiggins, 271 AD2d 639; Smith v Askew, 264 AD2d 834; Ahmed v Jaekyoo Yoo, 255 AD2d 345), and failed to set forth any objective medical basis for his conclusion that the injured plaintiffs disc herniations were caused or exacerbated by the subject accident (see, Grossman v Wright, supra; Vitale v Carson, 258 AD2d 647; Nadrich v Woodcrest Country Club, 250 AD2d 827; Weaver v Derr, 242 AD2d 823). Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.