Magro v. He Yin Huang

8 A.D.3d 245, 777 N.Y.S.2d 318, 2004 N.Y. App. Div. LEXIS 7468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 2004
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (Jonas, J.), entered January 24, 2002, which granted the separate motions of the defendants for summary judgment dismissing the complaint on the ground that the plaintiff Sebastian Magro did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and dismissed the complaint.

Ordered that the order and judgment is affirmed, with costs payable to the respondent Morris Roseman.

The defendants established a prima facie case that the plaintiff Sebastian Magro (hereinafter the injured plaintiff) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). In support of their separate motions, the defendants submitted, inter alia, the affirmed reports of two examining physicians, an orthopedist, and a neurologist, who opined that the injured plaintiff was “orthopedically stable,” exhibiting no “objective signs of ongoing disability or functional impairment” or “clinical evidence of a neurological impairment or deficit.”

In opposition, the plaintiffs failed to raise a triable issue of fact. The plaintiffs’ medical evidence was not in admissible form (see Grasso v Angerami, 79 NY2d 813 [1991]; Pagano v Kingsbury, 182 AD2d 268 [1992]). Although the dissent characterizes the statement of the injured plaintiff’s treating physician as an “affidavit,” the record clearly indicates that such statement was neither sworn to nor affirmed to be true under penalties of perjury (see CPLR 2106). H. Miller, J.P., Townes and Rivera, JJ., concur.