Scott v. Albord

292 A.D.2d 367, 738 N.Y.S.2d 590, 2002 N.Y. App. Div. LEXIS 2222

Opinion

In an action to recover damages for personal injuries, etc., the defen dant appeals from an order of the Supreme Court, Kings County (Pincus, J.), dated October 17, 2001, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Cyra Scott did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s contentions, the Supreme Court properly denied his motion for summary judgment. The defendant’s papers in support of his motion failed to establish that the injured plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) in the subject collision (see, CPLR 3212 [b]; cf., Gaddy v Eyler, 79 NY2d 955). Because the affirmed reports of the defendant’s examining physicians were improperly submitted to the Supreme Court for the first time in his reply papers, we decline to consider them (see, CPLR 2214; Klimis v Lopez, 290 AD2d 538; Feratovic v Lun Wah, Inc., 284 AD2d 368). Under these circumstances, we need not consider whether the plaintiffs’ opposition papers were sufficient to raise a triable issue of fact (see, Klimis v Lopez, supra; Boland v Dig Am., 277 AD2d 337). Prudenti, P.J., Florio, S. Miller, Friedmann and Adams, JJ., concur.