Gleason v. Huber

188 A.D.2d 581, 591 N.Y.S.2d 69, 1992 N.Y. App. Div. LEXIS 14482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1992
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated December 12, 1990, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Although the unsworn report of Dr. Ronald A. Nachman, the defendants’ examining physician, may not be considered in support of the defendants’ motion (see, Pagano v Kingsbury, 182 AD2d 268; Jacondino v Lovis, 186 AD2d 109), the plaintiff’s medical records and the reports of the plaintiff’s treating physician, Dr. F. Richard Hess, which were also annexed to the defendants’ moving papers, established, prima facie, that the plaintiff had not sustained a "serious injury” within the meaning of Insurance Law § 5102 (d) (see, Mandell v Leskiewicz, 170 AD2d 653; Charles v U.S. Fleet Leasing, 140 AD2d 481). The plaintiff’s assertions in her affidavit that she suffered from intermittent pain in her neck and head as a result of the accident, as well as the unsworn diagnosis of her chiropractor that she sustained "post traumatic cervical radiculitis”, were insufficient to defeat the defendants’ entitlement to summary judgment in their favor (see, Scheer v Koubek, 70 NY2d 678; O’Neill v Rogers, 163 AD2d 466; Delfino v Davey, 159 AD2d 604; Stadier v Findley, 148 AD2d 600; Mucci v Ruggerio, 133 AD2d 816). Sullivan, J. P., Balletta, Fiber and Santucci, JJ., concur.