Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 22, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action to recover for personal injuries allegedly sustained in a motor vehicle accident, defendant appeals from an order which denied his motion for summary judgment dismissing the complaint on the ground that plaintiff did not satisfy the serious injury threshold requirement of Insurance Law § 5102 (d).

Defendant met his prima facie burden of showing that plaintiff had not sustained 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]).

In opposition, plaintiff failed to raise a triable issue of fact. While the Civil Court held that plaintiff had raised a triable issue as to whether he had sustained an injury to his left shoulder as a result of the accident at issue under the significant limitation of use category of serious injury, "plaintiff was required to show the duration of the alleged injury and the extent or degree of the limitations associated therewith" (Ferraro v Ridge Car Serv., 49 AD3d 498, 498 [2008]), and substantiate his subjective complaints of pain and limitations of motion by verified objective medical findings based on a recent medical examination (see Rovelo v Volcy, 83 AD3d 1034 [2011] Sham v B & P Chimney Cleaning & Repair Co., Inc., 71 AD3d 978 [2010] Young v Russell, 19 AD3d 688 [2005]). However, since the most recent medical report proffered by plaintiff was based upon an examination performed nearly 2½ years before defendant filed his motion for summary judgment, plaintiff did not submit any medical evidence that was based on a recent examination (see Clarke v Delacruz, 73 AD3d 965 [2010] see also Kreimerman v Stunis, 74 AD3d 753 [2010] Kin Chong Ku v Baldwin-Bell, 61 AD3d 938 [2009] Diaz v Lopresti, 57 AD3d 832 [2008]).

Plaintiff's submissions were insufficient in other respects. Plaintiff's doctor failed to quantify any limitations in his ranges of motion (see Jean v Labin-Natochenny, 77 AD3d 623 [2010]). The radiological reports and the chiropractic and acupuncture examination reports annexed to plaintiff's opposition papers were without probative value since they were not affirmed or sworn to (see Grasso v Angerami, 79 NY2d 813 [1991] Lively v Fernandez, 85 AD3d 981 [2011] Husbands v Levine, 79 AD3d 1098 [2010]) and were not relied upon by defendant's doctors. Plaintiff's admissible evidence did not address the determination by defendant's radiologist that the findings of the cervical spine MRI were longstanding and degenerative in nature and unrelated to the present accident (see Singh v City of New York, 71 AD3d 1121 [2010] Chery v Jones, 62 AD3d 742 [2009]). Finally, plaintiff failed to proffer competent medical evidence that he had sustained a medically determined injury of a nonpermanent nature which prevented him from performing his usual and customary activities for at least 90 of the 180 days immediately following the subject accident (see McIntosh v O'Brien, 69 AD3d 585 [2010]). [*2]

In view of the foregoing, plaintiff failed to meet his burden in opposing defendant's showing of prima facie entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]), and, thus, defendant's motion for summary judgment dismissing the complaint should have been granted.

Weston, J.P., and Pesce, J., concur.

Rios, J., taking no part.
Decision Date: January 28, 2014