Feratovic v. Lun Wah, Inc.

284 A.D.2d 368, 725 N.Y.S.2d 892, 2001 N.Y. App. Div. LEXIS 6095

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated June 8, 2000, 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 affirmed, with costs.

The only submission made by the defendants in support of their motion for summary judgment was the bare affirmation of their attorney, which was not based on personal knowledge, and therefore, was without evidentiary value (see, Zuckerman v City of New York, 49 NY2d 557; Carpluk v Friedman, 269 AD2d 349; Sloan v Schoen, 251 AD2d 319). Thus, the defendants’ motion papers failed to make out a prima facie case that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) (see, Peschanker v Loporto, 252 AD2d 485; Malary v New York City Tr. Auth., 232 AD2d 380; Mondola v Demetres, 212 AD2d 515). Furthermore, we decline to consider the purported affirmation of the defendants’ examining neurologist, which was improperly submitted for the first time in the defendants’ reply papers (see, CPLR 2214; Voytek Technology v Rapid Access Consulting, 279 AD2d 470). Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.