Gonzales v. Fiallo
| Citation | 47 A.D.3d 760,849 N.Y.S.2d 182,2008 NY Slip Op 00452 |
| Decision Date | 22 January 2008 |
| Docket Number | 2006-08151. |
| Parties | REYNA GONZALES, Appellant, v. CARMEN FIALLO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
The defendant established her prima facie entitlement to judgment as a matter of law by establishing that the 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, 956-957 [1992]). Any restrictions in motion noted by the defendant's neurologist were adequately explained as self-imposed and unrelated to the accident, as part of the expert's qualitative assessment (see Toure v Avis Rent A Car Sys., 98 NY2d at 350).
On appeal, the plaintiff raises no argument that any of her submissions in opposition to the defendant's motion were sufficient to raise a triable issue of fact. We note, however, that the unaffirmed and uncertified reports and records relied upon by the plaintiff are without probative value (see Rodriguez v Cesar, 40 AD3d 731, 732-733 [2007]; Phillips v Zilinsky, 39 AD3d 728, 729 [2007]; Osgood v Martes, 39 AD3d 516 [2007]; Borgella v D & L Taxi Corp., 38 AD3d 701, 702 [2007]). The affirmation of the plaintiff's treating physician is likewise without probative value as the physician's conclusions rely upon the unsworn reports of others (see Phillips v Zilinsky, 39 AD3d at 729; Porto v Blum, 39 AD3d 614, 615 [2007]; Marziotto v Striano, 38 AD3d 623, 624 [2007]; Iusmen v Konopka, 38 AD3d 608, 609 [2007]).
The plaintiff's remaining contentions are without merit.
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