Bonsu v. Metropolitan Suburban Bus Authority

202 A.D.2d 538, 610 N.Y.S.2d 813, 1994 N.Y. App. Div. LEXIS 2643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1994
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated July 6, 1992, as granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff had failed to establish "serious injury” within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff’s proof in opposition to the defendant’s motion consisted entirely of unsworn medical reports from the plaintiff’s physicians and the plaintiff’s own sworn affidavit. Unsworn medical reports are not admissible in opposition to a motion for summary judgment based on the plaintiff’s failure to establish "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). Standing alone, the plaintiff’s affidavit consisted of nothing more than subjective complaints of pain, which are not sufficient to establish "serious injury” within the meaning of the statute (see, Scheer v Koubek, 70 NY2d 678; Dubois v Simpson, 182 AD2d 993; Cesar v Felix, 181 AD2d 852; Spezia v De Marco, 173 AD2d 462; Bates v Peeples, 171 AD2d 635). The trial court, therefore, properly granted the defendant’s motion for summary judgment and properly dismissed the complaint. Thompson, J. P., Rosenblatt, Ritter, Friedmann and Krausman, JJ., concur.