Mantila v. Luca

298 A.D.2d 505, 748 N.Y.S.2d 511, 2002 N.Y. App. Div. LEXIS 9951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2002
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Joseph, J.), dated October 24, 2001, which denied his 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 reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant’s submission of a medical report prepared by the plaintiff’s expert established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Gaddy v Eyler, 79 NY2d 955, 956-957; Forte v Vaccaro, 175 AD2d 153). Although unsworn, the report constituted competent evidence since it was prepared by the plaintiff’s physician (see Pagano v Kingsbury, 182 AD2d 268, 271).

The medical evidence submitted by the plaintiff in opposition to the motion failed to raise a triable issue of fact (see CPLR 3212 [b]). Feuerstein, J.P., Krausman, Luciano, Townes and Cozier, JJ., concur.