MERIC v. CANCELA (2000)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Burke, J.), dated January 19, 2000, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Francesca Meric did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

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

 The defendants established a prima facie case that the injuries sustained by the plaintiff Francesca Meric were not serious within the meaning of the Insurance Law through the affirmed reports of a neurologist, James B. Sarno, and an orthopedist, Barry D. Jupiter, who examined the injured plaintiff and found that she had no disability (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

 The medical evidence submitted by the plaintiffs in opposition to the motion was neither sworn to nor affirmed to be true under penalty of perjury and thus did not constitute competent evidence (see, Moore v. Tappen, 242 A.D.2d 526, 661 N.Y.S.2d 665).   Accordingly, the plaintiffs failed to raise a triable issue of fact (see, CPLR 3212[b] ), and the defendants' motion should have been granted.

MEMORANDUM BY THE COURT.