Black v. Regalado

36 A.D.3d 437, 828 N.Y.S.2d 29

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered September 27, 2005, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence that neither plaintiff satisfied the serious injury threshold of Insurance Law § 5102 (d) (Franchini v Palmieri, 1 NY3d 536 [2003]). Plaintiffs failed to satisfy their evidentiary burden of submitting, in opposition, “objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal” (Pommells v Perez, 4 NY3d 566, 574 [2005]). The unsworn medical documentation submitted by plaintiffs was not properly before the court, and thus was correctly not considered (Grasso v Angerami, 79 NY2d 813 [1991]). We also note the affirmation by plaintiff’s medical expert failed to explain adequately the reason for the 15-month gap in their treatment, and their excuse was not supported by the record. Concur — Sullivan, J.E, Williams, Sweeny, Catterson and Malone, JJ.