LOADHOLT v. NEW YORK CITY TRANSIT AUTHORITY (2004)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Durante, J.), dated October 27, 2003, which granted the defendants' 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 reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

 It is well established that when a defendant relies on the findings of defense experts, those findings must be in admissible form, i.e., affidavits or affirmations, not unsworn reports, in order to make a prima facie showing of entitlement to summary judgment (see Pagano v. Kingsbury, 182 A.D.2d 268, 270, 587 N.Y.S.2d 692;  Gleason v. Huber, 188 A.D.2d 581, 591 N.Y.S.2d 69).   In this case, the defendants submitted the reports of two experts, Dr. Stanley Ross and Dr. Monette G. Basson.   The report of Dr. Ross was unaffirmed, and therefore should not have been considered on the motion for summary judgment.   Dr. Basson's report was properly affirmed, however, Dr. Basson's neurological examination did not address the plaintiff's major claim of a serious injury to her right ankle and foot, and did not indicate that the doctor had even examined that area of her body.

Since the defendants failed to meet their initial burden of establishing a prima facie case that the plaintiff did not sustained a serious injury, “we need not consider whether the plaintiff's papers in opposition to the defendants' motion were sufficient to raise a triable issue of fact” (Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 438, 640 N.Y.S.2d 604;  see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349;  Chaplin v. Taylor, 273 A.D.2d 188, 708 N.Y.S.2d 465).