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JOSEPH NAPOLI, ET AL., APPELLANTS, v. THOMAS CUNNINGHAM, ET AL., RESPONDENTS.

DECISION ORDER

ORDERED that the order is affirmed, with costs.

In support of their motion for summary judgment, the defendants submitted the affirmation of an orthopedist who concluded, based upon a physical examination and objective medical tests, that the injured plaintiff's disc herniations were the result of a pre-existing degenerative condition rather than the subject automobile accident. This evidence was sufficient to establish a prima facie case that the injured plaintiff had not sustained a "serious injury" within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955), thus shifting the burden to the plaintiff to come forward with admissible proof to raise a triable question of fact (see, Grossman v. Wright, 268 A.D.2d 79 [2d Dept., May 8, 2000]; Joseph v. Cherry, 269 A.D.2d 498 [2d Dept., Feb. 22, 2000]). The affidavit of the injured plaintiff's treating physician failed to raise a triable issue of fact because it improperly relied upon findings contained in the unsworn medical report of another physician (see, Diaz v. Wiggins, 271 A.D.2d 639 [2d Dept., Apr. 24, 2000]; Smith v. Askew, 264 A.D.2d 834; Ahmed v. Yoo, 255 A.D.2d 345), and failed to set forth any objective medical basis for his conclusion that the injured plaintiff's disc herniations were caused or exacerbated by the subject accident (see, Grossman v. Wright, supra; Vitale v. Carson, 258 A.D.2d 647; Nadrich v. Woodcrest Country Club, 250 A.D.2d 827; Weaver v. Derr, 242 A.D.2d 823).

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NAPOLI v. CUNNINGHAM
(Jun 19, 2000)