Ponterella v. Chiarella

248 A.D.2d 607, 669 N.Y.S.2d 941, 1998 N.Y. App. Div. LEXIS 2925

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), entered March 10, 1997, as denied her motion for summary judgment dismissing the complaint on the ground that the plaintiff Rosalie Ponterella did not sustain a serious injury as defined by Insurance Law § 5102 (d).

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is granted, and the complaint is dismissed.

The affirmed reports authored by Dr. Roy H. Brown and Dr. Chandra M. Sharma which were submitted by the defendant in support of her motion made out a prima facie case that the plaintiff Rosalie Ponterella did not sustain a serious injury as defined by Insurance Law § 5102 (d).

The only medical evidence which the plaintiffs submitted in opposition to the motion was either unsworn or not affirmed to be true under penalty of perjury, and thus did not constitute competent evidence (see, Moore v Tappen, 242 AD2d 526).

Rosenblatt, J. P., Sullivan, Joy, Altman and Luciano, JJ., concur.