Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered September 28, 2006. The order, insofar as appealed from, denied defendant's motion for summary judgment under the permanent consequential limitation and significant limitation of use categories of Insurance Law § 5102 (d).

Order, insofar as appealed from, reversed without costs, defendant's motion for summary judgment granted and complaint dismissed.

Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The court granted partial summary judgment to defendant with respect to plaintiff's claims under the permanent loss of use and the 90/180 day categories of the statute and denied the motion with respect to plaintiff's claims under the permanent consequential limitation and significant limitation of use categories. Defendant appeals from the part of the order denying his motion as to the limitation of use categories.

As apparently conceded by plaintiff, defendant met his prima facie burden of showing that 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 [1992]). Accordingly, the burden shifted to plaintiff to come forward with admissible evidence sufficient to raise a triable issue of fact. In our view, plaintiff failed to satisfy this burden.

Although the report of Dr. Krishna was properly affirmed and discussed recent objective testing which he performed on plaintiff, Dr. Krishna admitted that he also relied upon the unsworn reports of others in arriving at his conclusion that plaintiff sustained limitations of use of his lumbosacral and cervical spine. The unsworn medical reports were of no probative value in opposing defendant's motion (see Malave v Basikov, 45 AD3d 539 [2007]; Govori v Agate [*2]Corp., 44 AD3d 821 [2007]; cf. Gibson v Tordoya, 44 AD3d 1000 [2007]). Further, since Dr. Krishna's own examinations of plaintiff occurred more than four years after the accident, they failed to provide any competent medical proof that was contemporaneous with the accident indicating range of motion limitations (see Elder v Stokes, 35 AD3d 799 [2006]).

In view of the lower court's dismissal of plaintiff's claims under the permanent loss of use and the 90/180 day categories of Insurance Law § 5102 (d), and in view of the determination herein that there is no merit to plaintiff's claims under the remaining two applicable categories of the statute, consequential limitation and significant limitation of use, defendant's motion for summary judgment dismissing the complaint is granted.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: May 9, 2008