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Malave v. Basikov

Appellate Division of the Supreme Court of New York, Second Department
Nov 7, 2007
845 N.Y.S.2d 415 (N.Y. App. Div. 2007)

Opinion

No. 2006-08847.

November 7, 2007.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated August 4, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Wingate, Russotti Shapiro, LLP, New York, N.Y. (Scott A. Stern of counsel), for appellant.

Baker, McEvoy, Morrissey Moskovits, P.C., New York, N.Y. (Michael I. Josephs and Adams DiStefano, LLP, of counsel), for respondents.

Before: Crane, J.P., Ritter, Fisher, Covello and Dickerson, JJ., concur.


Ordered that the order is affirmed, with costs.

The defendants met their prima facie burden on their motion for summary judgment by establishing that the 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; Gaddy v Eyler, 79 NY2d 955; see also Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff principally relied upon the submission of voluminous unaffirmed reports and uncertified medical records, which were without any probative value ( see Rodriguez v Cesar, 40 AD3d 731, 732-733). The affirmation of the plaintiff's treating physician also lacked any probative value since he relied on unaffirmed reports of others ( see Furrs v Griffith, 43 AD3d 389; Phillips v Zilinsky, 39 AD3d 728; Porto v Blum, 39 AD3d 614, 615), and failed to compare any of his own findings on range of motion to what is normal ( see Nociforo v Penna, 42 AD3d 514, 515; McNulty v Buglino, 40 AD3d 591).


Summaries of

Malave v. Basikov

Appellate Division of the Supreme Court of New York, Second Department
Nov 7, 2007
845 N.Y.S.2d 415 (N.Y. App. Div. 2007)
Case details for

Malave v. Basikov

Case Details

Full title:ANDRE MALAVE, Appellant, v. VICTOR BASIKOV et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 7, 2007

Citations

845 N.Y.S.2d 415 (N.Y. App. Div. 2007)
845 N.Y.S.2d 415
2007 N.Y. Slip Op. 8418

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