Lozusko v. Miller

• Decision Date: 20 April 2010
• Parties: Isyslav LOZUSKO, et al., appellants, v. Harriet MILLER, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 358
72 A.D.3d 908

Isyslav LOZUSKO, et al., appellants,
v.
Harriet MILLER, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

April 20, 2010.

899 N.Y.S.2d 359

The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Eileen Kaplan of counsel), for appellants.

Callan, Koster, Brady & Brennan LLP, New York, N.Y. (Michael P. Kandler and Stephen J. Barrett of counsel), for respondents.

WILLIAM F. MASTRO, J.P., FRED T. SANTUCCI, THOMAS A. DICKERSON, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

72 A.D.3d 908

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated March 29, 2009, which, in effect, granted the motion of the defendants Harriet Miller and Israel Miller for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff Isyslav Lozusko did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants Harriet Miller and Israel Miller (hereinafter together the Millers) established, prima facie, that the plaintiff Isyslav Lozusko (hereinafter the injured 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 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). In opposition to the Millers' showing, the plaintiffs failed to raise a triable issue of fact. The medical reports of Dr. Y. George Krementsov, the initial report of Dr. Zina Turovsky, and the injured plaintiff's physical therapy reports were unaffirmed, and the injured plaintiff's hospital records were uncertified and, thus, failed to raise a triable issue of fact ( see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76; Bleszcz v. Hiscock, 69 A.D.3d 890, 894 N.Y.S.2d 481; Singh v. Mohamed, 54 A.D.3d 933, 864 N.Y.S.2d 498; Verette v. Zia, 44 A.D.3d 747, 844 N.Y.S.2d 71; Nociforo v. Penna, 42 A.D.3d 514, 840 N.Y.S.2d 396; Mejia v. DeRose, 35 A.D.3d 407, 825 N.Y.S.2d 722).

Although the plaintiffs' reliance on unaffirmed reports of magnetic resonance imaging (hereinafter MRI) scans was not improper since the results of those MRI scans were set forth in the affirmed medical report of the Millers'...