CPT MEDICAL SERVICES v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE CO (2007)

Order (Fernando Tapia, J.), dated June 16, 2006, reversed, with $10 costs, defendant's motion for summary judgment granted, and complaint dismissed.   The Clerk is directed to enter judgment accordingly.

 Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence, including a peer reviewer's affidavit incorporating by reference the findings set forth in his earlier report, that the diagnostic testing giving rise to plaintiff's claim for first party no-fault benefits lacked medical necessity.   In opposition, plaintiff relied upon an attorney's affirmation accompanied by a single, unsworn and undated doctor's report, which was not properly before the court and should not have been considered (see Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991];  Black v. Regalado, 36 A.D.3d 437, 828 N.Y.S.2d 29 [2007];  Henkin v. Fast Times Taxi, Inc., 307 A.D.2d 814, 763 N.Y.S.2d 297 [2003] ).   While a physician's affirmation submitted in opposition to summary judgment may be based on an unsworn medical report (see Pommells v. Perez, 4 N.Y.3d 566, 577, n. 5, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ), an attorney's affirmation augmented only by an unsworn medical report does not constitute admissible opposing evidence.   In any event, even if considered, the unsworn report of plaintiff's doctor was insufficient to defeat summary judgment, since it failed to mention, much less meaningfully address, the negative diagnostic study separately administered during the month preceding the testing here at issue.

PER CURIAM: