Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered June 20, 2005. The order granted defendants' motion for summary judgment.

Order modified by denying that part of defendants' motion for summary judgment with respect to the 90/180 day category of serious injury within the meaning of Insurance Law § 5102 (d) and reinstating the complaint with respect to that category of serious injury; as so modified, affirmed without costs.

In our opinion, the order should be modified to the extent of denying defendant's motion for summary judgment regarding the 90/180 day category of Insurance Law § 5102 (d) (Fortino v Fayetteville-Manlius Cent. School Dist., 16 AD3d 1124 [2005]). A defendant may submit unsworn medical reports of the injured plaintiff's physician in order to demonstrate the lack of a serious injury (Kearse v New York City Tr. Auth., 16 AD3d 45 [2005]). While plaintiff's doctor's report stated that plaintiff could return to work as a custodian two months after the accident, it also stated that he could not lift more than 25 pounds and could not push hand trucks, buffing machines, etc. Moreover, defendants submitted plaintiff's examination before trial in which he stated that he did not return to work for four months after the accident. This proof was insufficient to establish that plaintiff did not sustain a medically determined injury of a nonpermanent nature which prevented him from performing substantially all of the material acts [*2]which constituted his usual and customary activities for a period of not less than 90 days during the 180-day period immediately following the accident (Nembhard v Delatorre, 16 AD3d 390 [2005]). Consequently, defendants failed to shift the burden with respect to the 90/180 day category of the statute and it is thus unnecessary to reach the question of whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact as to this branch of the motion (Madatova v Madatov, 27 AD3d 531 [2006]).

With respect to the remaining categories of serious injury under Insurance Law § 5102 (d), the court properly granted defendants' motion for summary judgment. The affirmed medical report submitted by defendants set forth objective tests that the doctor performed during his examination in which he found full range of motion of plaintiff's lumbar and cervical spine, and right knee. The burden, therefore, shifted to the plaintiff to raise a triable issue of fact as to the remaining categories (Gaddy v Eyler, 79 NY2d 955 [1992]).

The plaintiff unsuccessfully opposed this branch of the motion. He merely attached the unsworn medical reports of two doctors who examined him within four months after the accident. There are no findings based upon any recent examination (see Kauderer v Penta, 261 AD2d 365 [1999]; see also Young v Gonzalez, 19 AD3d 408 [2005]).

Golia and Belen, JJ., concur.

Weston Patterson, J.P., concurs in part and dissents in part in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.
RAJARINE GANPAT,

Appellant,

-against-
FRANK A. GRIFFITH and SHEILA E. BASCOM,

Respondents.

Weston Patterson, J.P., concurs in part and dissents in part and votes to affirm the order granting defendants' motion for summary judgment in the following memorandum:

I disagree with the majority only insofar as they deny defendants' motion for summary judgment with respect to the 90/180 day category of serious injury. As the majority notes, a defendant may submit unsworn medical reports of the injured plaintiff's physician in order to demonstrate the lack of a serious injury (Kearse v New York City Tr. Auth., 16 AD3d 45 [2005]). Here, defendants submitted plaintiff's doctor's report which indicated that he allowed plaintiff to return to work as a custodian two months after the accident. The fact that plaintiff testified, at his deposition, that he missed four months of work is irrelevant, as such statements are self-serving and unsupported by objective medical evidence (see Thompson v Abbasi, 15 AD3d 95, 100-101 [2005]; Nelson v Distant, 308 AD2d 338, 339-340 [2003]).

The burden, therefore, shifted to plaintiff to raise a triable issue of fact as to whether he sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]). Since plaintiff failed to submit any competent medical evidence indicating that he was unable to perform substantially all of his daily activities for not less than 90 out of the first 180 days as a result of the accident, said branch of defendants' motion should likewise have been granted (Hernandez v Diva Cab Corp., 22 AD3d 722 [2005]). Accordingly, I would affirm the order granting defendants' motion for summary judgment in its entirety.
Decision Date: July 6, 2006