Conti v. Valeriano

259 A.D.2d 655, 685 N.Y.S.2d 631, 1999 N.Y. App. Div. LEXIS 2715

Opinion

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Garry, J.), dated March 12, 1998, which denied their 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 reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

In support of their 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), the defendants submitted a medical report which was affirmed under penalty of perjury by a physician. The report made out a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

In opposition to the motion, the plaintiff relied upon the medical reports of the defendants’ physicians, both of whom served as experts for the defendants. Neither of these reports, however, raised a triable issue of fact (see, CPLR 3212 [b]). The other medical report upon which the plaintiff relied was unsworn and unsigned, and therefore did not constitute evidentiary proof in admissible form (see, Pagano v Kingsbury, 182 AD2d 268). Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.