Love v. Vecchiarelli

249 A.D.2d 517, 671 N.Y.S.2d 335, 1998 N.Y. App. Div. LEXIS 4633

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 27, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Rockland County (Bergerman, J.), dated September 11, 1997, which, upon granting the plaintiffs’ motion for renewal and reargument, vacated a prior order dated June 10, 1997, granting the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Darlene Love did not sustain a serious injury as defined by Insurance Law § 5102 (d), and thereupon denied the defendants’ motion for summary judgment.

Ordered that the order dated September 11, 1997, is reversed, on the law, with costs, the plaintiffs’ motion for reargument and renewal is denied, the order dated June 10, 1997, granting the defendants’ motion for summary judgment dismissing the complaint is reinstated, and the complaint is dismissed.

By order dated June 10, 1997, the Supreme Court properly granted the defendants’ original motion for summary judgment dismissing the complaint based on the absence of triable issues of fact (see, CPLR 3212 [b]) as to whether the plaintiif Darlene Love sustained a serious injury as defined by Insurance Law § 5102 (d). Inasmuch as the new medical evidence which the plaintiffs submitted upon their motion for renewal and reargument was unsworn and thus not competent (see, Pagano v Kingsbury, 182 AD2d 268; Friedman v U-Haul Truck Rental, 216 AD2d 266), the court should not have vacated the order dated June 10, 1997. O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.