Appeal and cross appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered April 20, 2007. The order, insofar as appealed from by defendant, denied so much of his motion as sought summary judgment "dismiss[ing]" the complaint with respect to the 90/180 day category of serious injury under Insurance Law § 5102 (d), and, insofar as cross-appealed from by plaintiffs, granted defendant's motion for summary judgment "dismiss[ing]" the complaint with respect to the permanent loss of use and permanent consequential limitation of use categories of serious injury.

Order, insofar as appealed from by defendant, reversed without costs, so much of defendant's motion seeking summary judgment with respect to the 90/180 day category of serious injury granted and complaint dismissed.

Order, insofar as cross-appealed from by plaintiffs, affirmed without costs.

Defendant moved for summary judgment dismissing the complaint on the ground that the [*2]injured plaintiff, Maria Lemus, did not satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d). The court granted defendant's motion with regard to the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories of serious injury. Defendant appeals from so much of the order as denied his motion as to the 90/180 day category. Plaintiffs cross-appeal from that part of the order which granted defendant's motion under the permanent loss of use and permanent consequential limitation of use categories.

Defendant met his prima facie burden of showing that plaintiff Maria Lemus did not sustain a serious injury under the subject statutory categories. The tests performed by defendant's examining neurologist and orthopedist indicated that Maria Lemus had a full range of motion in the tested areas as compared to normal function, and that she had no disability. Contrary to the findings of the court below, defendant made a prima facie case showing with respect the 90/180 day category, since Maria Lemus' deposition testimony undermined her claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities for at least 90 days out of the first 180 days following the accident (see Hasner v Budnik, 35 AD3d 366 [2006]).

The burden thus shifted to plaintiffs to raise a triable issue of fact that Maria Lemus sustained a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]), and plaintiffs failed to successfully oppose defendant's motion. Maria Lemus' examining chiropractor improperly relied upon an unsworn medical report, and plaintiffs annexed as an exhibit an unaffirmed MRI report. Plaintiffs' reliance upon unsworn reports failed to raise a triable issue since the reports are without probative value (see Verette v Zia, 44 AD3d 747, 748 [2007]; Marziotto v Striano, 38 AD3d 623, 624 [2007]). The record also shows that Maria Lemus' experts failed to discuss the injuries which she sustained in a prior accident. Therefore, the experts' findings, that Maria Lemus' restrictions of motion were causally related to the subject motor vehicle accident, should not have been considered in opposition to defendant's motion (see Luckey v Bauch, 17 AD3d 411 [2005]; Rogers v Chiarelli, 10 AD3d 355, 356 [2004]; McCauley v Ross, 298 AD2d 506 [2002]).

We further find that plaintiffs failed to raise a triable issue with regard to the 90/180 day category. Maria Lemus' claims about the limitation of her activities were not supported by competent medical evidence. Consequently, her claims were insufficient to show that she sustained a serious injury under the 90/180 day category (see Insurance Law § 5102 (d); Springer v Arthurs, 22 AD3d 829 [2005]; Ersop v Variano, 307 AD2d 951 [2003]). In view of the foregoing, the order, insofar as appealed from by defendant, is reversed, so much of defendant's motion seeking summary judgment with respect to the 90/180 day category of serious injury is granted and the complaint is dismissed. The order, insofar as cross-appealed from by plaintiffs, is affirmed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 23, 2008