Dan v. Luke

• Decision Date: 18 March 1997
• Citation: 655 N.Y.S.2d 366,237 A.D.2d 165
• Parties: Catherine DAN, et al., Plaintiffs-Appellants, v. Noel A. LUKE, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 366

655 N.Y.S.2d 366

237 A.D.2d 165

Catherine DAN, et al., Plaintiffs-Appellants, v. Noel A. LUKE, et al., Defendants-Respondents.

Supreme Court of New York, Appellate Division, First Department.

March 18, 1997.

Robin G. Neiger, for Plaintiffs-Appellants.

E. Richard Rimmels, Jr., for Defendants-Respondents.

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered on or about January 23, 1996, which granted defendants' motion and cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly granted summary judgment to defendants, who predicated their motion upon, inter alia, plaintiff's bill of particulars and various X-ray, MRI and other reports prepared and signed by plaintiff's treating physicians (see, Deangelo v. Marcia Serv. Corp., 199 A.D.2d 58, 605 N.Y.S.2d 31). These submissions established that there is no merit to plaintiff's claim of "serious injury" within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130). Moreover, the court properly determined that plaintiff's letter and a report prepared by two of plaintiff's treating physicians were inadmissible because they were unsworn and had not been affirmed (see, CPLR 2106; McLoyrd v. Pennypacker, 178 A.D.2d 227, 577 N.Y.S.2d 272, lv. denied 79 N.Y.2d 754, 581 N.Y.S.2d 665, 590 N.E.2d 250). In any event, these documents do not demonstrate that plaintiff suffered a "serious injury" within the meaning of section 5102(d).

SULLIVAN, J.P., and MILONAS, ROSENBERGER and RUBIN, JJ., concur.