Wiley v. Hannon

194 A.D.2d 722, 601 N.Y.S.2d 805, 1993 N.Y. App. Div. LEXIS 6468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 1993
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated May 15, 1991, which denied her motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

This negligence action arises out of an automobile accident wherein the plaintiff’s car was struck in the rear by a motor vehicle owned and operated by the defendant. The plaintiff alleged she suffered "serious injury” under Insurance Law § 5102 (d).

While the unsworn reports of the defendant’s examining physician may not be considered, the unsworn reports of the plaintiff’s medical witnesses, submitted by the defendant, demonstrate prima facie that the plaintiff did not suffer "serious injury” (see, Insurance Law § 5102 [d]; Pagano v Kingsbury, 182 AD2d 268, 269).

The opposing papers submitted by the plaintiff consisted of the plaintiff’s own affidavit and two unsworn reports of the plaintiff’s examining physicians. This evidence, other than the plaintiff’s own affidavit, is not in admissible form, and therefore, may not be considered in deciding the motion. As to the plaintiff’s affidavit, her subjective complaints are insufficient under the circumstances to meet the statutory requirement of "serious injury” (see, Scheer v Koubek, 70 NY2d 678; Beckett v Conte, 176 AD2d 774; Phillips v Costa, 160 AD2d 855).

Accordingly, the order appealed from is reversed, and summary judgment is granted to the defendant dismissing the complaint. Thompson, J. P., Bracken, Balletta and Eiber, JJ., concur.