Uribe-Zapata v. Capallan
Decision Date | 23 September 2008 |
Docket Number | No. 2008-02730,2008-02730 |
Citation | 54 A.D.3d 936,2008 NY Slip Op 7116,864 N.Y.S.2d 118 |
Parties | MATILDE URIBE-ZAPATA, Respondent, et al., Plaintiff, v. ANTONIO CAPALLAN, Appellant. |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Matilde Uribe-Zapata on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) is granted.
The defendant met his prima facie burden of showing that the plaintiff Matilde Uribe-Zapata (hereinafter 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]).
In opposition, the plaintiff failed to raise a triable issue of fact. The magnetic resonance imaging (hereinafter MRI) reports concerning the plaintiff's lumbar spine and right knee lacked probative value since they were unaffirmed (see Verette v Zia, 44 AD3d 747, 748 [2007]; see also Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Pagano v Kingsbury, 182 AD2d 268, 270 [1992]). In addition, the affirmation of the plaintiff's treating physician lacked probative value since he relied on the unsworn MRI report concerning the lumbar spine in arriving at the plaintiff's diagnosis (see Malave v Basikov, 45 AD3d 539, 540 [2007]; Verette v Zia, 44 AD3d at 748; Furrs v Griffith, 43 AD3d 389 [2007]; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 266-267 [1995]). Finally, the self-serving affidavit of the plaintiff was insufficient to show that she sustained a serious injury as a result of the subject accident (see Michel v Blake, 52 AD3d 486, 486-487 [2008]; Shvartsman v Vildman, 47 AD3d 700, 701 [2008]; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]). The plaintiff failed to proffer competent medical evidence that she sustained a medically-determined injury of a...
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