Mezentseff v. Ming Yat Lau

284 A.D.2d 379, 725 N.Y.S.2d 898, 2001 N.Y. App. Div. LEXIS 6040

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Gigante, J.), dated August 8, 2000, which denied his motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Revekka Mezentsev on the ground that she 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 insofar as asserted by the respondent.

The appellant established a prima facie case that the injuries sustained by the respondent were not serious within the meaning of Insurance Law § 5102 (d) by submitting an affirmed report of a board-certified neurologist, who examined the respondent and concluded that “there is no disability” (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The medical evidence submitted by the respondent in opposition to the motion, a report prepared by a board-certified psychiatrist, was neither sworn to nor affirmed to be true under penalty of perjury, and thus did not constitute competent evidence (see, CPLR 2106; Moore v Tappen, 242 AD2d 526). Accordingly, the respondent failed to raise a triable issue of fact as to whether she sustained a serious injury. Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.