Appeal by plaintiff from an order of the Civil Court, Queens County (A. Agate, J.), entered January 14, 2003, which granted defendants' motion for summary judgment dismissing the action.

Order unanimously affirmed without costs.

In this personal injury action arising out of an automobile accident, defendants moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). The affirmations of defendants' examining physicians made out a prima facie case that plaintiff did not sustain a serious injury. As a result, the burden shifted to plaintiff to come forward with sufficient evidence to overcome defendants' motion by offering competent proof that he, in fact, sustained such an injury (Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]).

Plaintiff's opposition papers consisted of an affidavit by an examining physician, Dr. Klingon, which referred to an EMG report of May 26, 1997 and an MRI report of plaintiff's lumbar spine. Unsworn copies of said reports were attached to plaintiff's motion papers. Inasmuch as said medical reports were prepared by a doctor other than Dr. Klingon, they cannot be relied upon to support a finding of serious injury (see Mersica v Alford, 243 AD2d 613, 614 [1997]; Friedman v U-Haul Truck Rental, 216 AD2d 266 [1995]; Pagano v Kingsbury, 182 AD2d 268 [1992]). Thus, any reference to plaintiff suffering a herniated disc as a result of the [*2]accident, being supported solely by the unsworn MRI report, cannot be considered in establishing an issue of fact as to the existence of a serious injury.

It should be noted that although plaintiff's attorney attached as an exhibit an "affidavit" from Dr. Liebeskind, the doctor who performed the MRI, said affidavit was signed by one "Gary Malgerman, M.D. for Doreen Liebeskind", and is therefore of no probative effect.

The only remaining symptom which might satisfy the "serious injury" requirement is Dr. Klingon's finding upon his examination regarding plaintiff's loss of range of motion. However, inasmuch as neither the doctor's affidavit nor his report compared plaintiff's limitations to the normal functions, purposes and uses of the affected areas, it cannot be used to satisfy the threshold (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]).
Decision Date: May 14, 2004