Simms v. Apa Truck Leasing Corp.

• Citation: 2005 NY Slip Op 00020,14 A.D.3d 322,788 N.Y.S.2d 63
• Decision Date: 04 January 2005
• Docket Number: 5038.
• Parties: ELEANOR L. SIMMS, Appellant, v. APA TRUCK LEASING CORPORATION et al., Respondents.
• Court: New York Supreme Court Appellate Division

14 A.D.3d 322

788 N.Y.S.2d 63

2005 NY Slip Op 00020

ELEANOR L. SIMMS, Appellant, v. APA TRUCK LEASING CORPORATION et al., Respondents.

5038.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 4, 2005.

Order, Supreme Court, Bronx County (Jerry L. Crispino, J.), entered August 5, 2003, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendants' prima facie showing of no "serious injury" (Insurance Law § 5102 [d]), plaintiff submitted the report of his examining physician which, while denominated an affirmation, is neither affirmed nor sworn to (CPLR 2106; Grasso v Angerami, 79 NY2d 813 [1991]; Charlton v Almaraz, 278 AD2d 145 [2000]). Thus, the court properly refused to consider the unsworn report. Plaintiff's attempt to submit a corrected affirmation for the first time on appeal to this Court is improper and we decline to consider it. In any event, the measurements of loss of range of motion described therein are not shown to be causally connected to the accident in which plaintiff allegedly sustained the loss (Chrisomalides v Ekow, 291 AD2d 202 [2002]), nor does the affirmation address defendants' radiologist's findings attributing plaintiff's spinal condition to a preexisting degenerative condition (Shinn v Catanzaro, 1 AD3d 195 [2003]), or how that condition may have impacted on his diagnosis (Shaw v Looking Glass Assoc., 8 AD3d 100 [2004]). Additional diagnostic statements in plaintiff's physician's report were conclusory and tailored to meet statutory requirements (Hernandez v Lopez, 9 AD3d 300 [2004]). Plaintiff's radiologist's report is also insufficient since the mere existence of a herniated disc does not per se constitute serious injury (Noble v Ackerman, 252 AD2d 392, 394 [1998]), and plaintiff failed to offer any objective evidence, as is required, of the extent or degree of her alleged physical limitations and their duration, resulting from the disc injury (Arjona v Calcano, 7 AD3d 279 [2004]).

Concur — Mazzarelli, J.P., Ellerin, Nardelli, Marlow and Catterson, JJ.