        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

158
CA 12-00733
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


ROBERT LABEEF, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STEVEN H. BAITSELL, INDIVIDUALLY AND AS AN
EMPLOYEE OF FLOWERS BY MR. JOHN AND SEAN
PELKEY, DOING BUSINESS AS FLOWERS BY MR.
JOHN, DEFENDANTS-RESPONDENTS.


SHANLEY LAW OFFICES, OSWEGO (P. MICHAEL SHANLEY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KRISTIN L. NORFLEET
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oswego County (Norman
W. Seiter, Jr., J.), entered July 11, 2011 in a personal injury
action. The order granted defendants’ motion for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when his vehicle was rear-ended by a vehicle
owned by defendant Sean Pelkey, doing business as Flowers by Mr. John,
and operated by defendant Steven H. Baitsell, individually and as an
employee of Flowers by Mr. John. We conclude that Supreme Court
properly granted defendants’ motion for summary judgment dismissing
the complaint on the ground that plaintiff did not sustain a serious
injury within the meaning of Insurance Law § 5102 (d). Plaintiff
contends that the court erred in granting defendants’ motion because
he sustained a serious injury under the 90/180-day category of serious
injury. We reject that contention. Defendants met their initial
burden of establishing that plaintiff did not sustain a serious injury
under the 90/180–day category, and plaintiff failed to raise a triable
issue of fact in opposition (see generally Zuckerman v City of New
York, 49 NY2d 557, 562).

     In opposition to the motion, plaintiff submitted unsworn medical
records, which were not in admissible form and thus were insufficient
to show that plaintiff sustained a serious injury under the 90/180-day
category (see Dann v Yeh, 55 AD3d 1439, 1441). The admissible medical
evidence that plaintiff submitted indicated that approximately one
month after the accident plaintiff could return to work with some
                                 -2-                           158
                                                         CA 12-00733

slight lifting restrictions and that he did not need household help,
durable medical equipment or special transportation. Another
admissible medical report indicated that nearly five months after the
accident plaintiff walked with a non-antalgic gait, experienced no
difficulty getting on and off the examination table or turning from a
supine to a prone position, and was able to remove and replace his
shoes. Although plaintiff states in his affidavit that he had some
household help immediately after the accident and that his
recreational activities were limited, he failed to submit the
requisite objective evidence of “a medically determined injury or
impairment of a non-permanent nature” (Insurance Law § 5102 [d]) and
to establish that the injury caused the alleged limitations on
plaintiff's daily activities (see Dann, 55 AD3d at 1441; Calucci v
Baker, 299 AD2d 897, 898).




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
