Feratovic v. Lun Wah Inc.
| Decision Date | 16 May 2001 |
| Citation | 284 AD2d 368,725 N.Y.S.2d 892 |
| Parties | (A.D. 2 Dept. 2001) NEDZAD FERATOVIC, RESPONDENT, v. LUN WAH, INC., ET AL., APPELLANTS. 2000-07766 : SECOND JUDICIAL DEPARTMENT Submitted- |
| Court | New York Supreme Court — Appellate Division |
Smith Mazure Director Wilkins Young Yagerman & Tarallo, P.C., New York, N.Y. (Melissa Romano-Schulman of counsel), for appellants.
Charles Berkman (Ephrem Wertenteil, New York, N.Y., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Schneier, J.), dated June 8, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The only submission made by the defendants in support of their motion for summary judgment was the bare affirmation of their attorney, which was not based on personal knowledge, and therefore, was without evidentiary value (see, Zuckerman v City of New York, 49 N.Y.2d 557; Carpluk v Friedman, 269 A.D.2d 349; Sloan v Schoen, 251 A.D.2d 319). Thus, the defendants' motion papers failed to make out a prima facie case that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d) (see, Peschanker v Loporto, 252 A.D.2d 485; Malary v New York City Tr. Auth., 232 A.D.2d 380; Mendola v Demetres, 212 A.D.2d 515). Furthermore, we decline to consider the purported affirmation of the defendants' examining neurologist, which was improperly submitted for the first time in the defendants' reply papers (see, CPLR 2214; Voytek Technology v Rapid Access Consulting, 279 A.D.2d 470).
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SABA Realty Partners LLC v. APEX Limousines Inc.
...no evidentiary value (See, Zuckerman v. City of New York, 49 NY2d 557, 563; 404 N.E.2d 718, 721 [1980]; Feratovic v. Lun Wah, Inc., 284 AD2d 368, 368; 725 N.Y.S.2d 892, 893 [2d 2001]). The court will, nevertheless, consider the legal arguments raised by respondents' counsel pertaining to al......