Philippe v. Ivory

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 Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 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 AD2d 313; Delgado v Hakim, 287 AD2d 592; Monaco v Davenport, 277 AD2d 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 AD2d 613; Wilkins v Cameron, 214 AD2d 557; Stallone v County of Suffolk, 209 AD2d 403). Furthermore, the plaintiffs failed to come forward with suf 667 ficient 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 Sys., supra; Savattere v Barnathan, 280 AD2d 537; Jimenez v Kambli, 272 AD2d 581; Marin v Kakivelis, 251 AD2d 462; Rodriguez v Kwan Cheung Tsui, 233 AD2d 382; Covington v Cinnirella, 146 AD2d 565). Ritter, J.P., Florio, Goldstein, Luciano and Cozier, JJ., concur.