Hochlerin v. Tolins

186 A.D.2d 538, 588 N.Y.S.2d 795, 1992 N.Y. App. Div. LEXIS 11147

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1992
• Status: Published

Opinion

— In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Burstein, J.), dated May 25, 1990, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant moved for summary judgment, contending that the plaintiff did not sustain a "serious injury” within the purview of Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230). In support of his motion, the defendant relied, inter alia, on an unsworn report prepared by his examining physician, and two unsworn reports prepared by the plaintiff’s own treating physicians.

Although a moving defendant may rely on the unsworn reports of the plaintiff’s own physicians in support of a motion for summary judgment, the reports relied upon here do not demonstrate that the plaintiff had not suffered a "serious injury”. Additionally, the unsworn report of the defendant’s own expert was not in admissible form. Accordingly, the papers submitted in support of the motion were insufficient to make a prima facie showing of the defendant’s entitlement to judgment as a matter of law (see, Pagano v Kingsbury, 182 AD2d 268).

In any event, the plaintiff carried his burden of establishing a prima facie case of "serious injury” pursuant to Insurance Law § 5102 (d) with the affidavits of two chiropractors (see, Marsh v Wolfson, 186 AD2d 115; Bates v Peeples, 171 AD2d 635; Spezia v De Marco, 173 AD2d 462; Morsellino v Frankel, 161 AD2d 748; Conde v Eric Serv. Corp., 158 AD2d 651). Bracken, J. P., Rosenblatt, Ritter and Pizzuto, JJ., concur.