Bernadel v. Beran

270 A.D.2d 297, 704 N.Y.S.2d 289, 2000 N.Y. App. Div. LEXIS 2736

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 13, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated June 17, 1999, which denied his 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).

Ordered that the order is affirmed, with costs.

The defendant’s expert asserted conclusorily that the plaintiffs condition was “in part related to a pre-existing multilevel degenerative disc condition of the cervical and lumbosacral spines as noted by [magnetic resonance imaging reports]” and in part related to the accident. Since this assertion was based on unsubmitted and unsworn magnetic resonance imaging reports, the defendant failed to establish a prima facie case of entitlement to judgment as a matter of law. Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.