SULLY v. KINGS LUXURY INC (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnson, J.), dated March 30, 2006, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The defendants met their burden of establishing that the plaintiff did not sustain a serious injury as a result of the subject accident (see Insurance Law § 5102[d];  Baez v. Rahamatali, 6 N.Y.3d 868, 869, 817 N.Y.S.2d 204, 850 N.E.2d 19;  Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 829 N.Y.S.2d 169).   In opposition to the defendants' motion, the plaintiff submitted a physician's report which was unaffirmed and thus, insufficient to raise an issue of fact (see Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Elder v. Stokes, 35 A.D.3d 799, 828 N.Y.S.2d 138;  Nkhereanye v. Hillaire, 35 A.D.3d 419, 826 N.Y.S.2d 372).   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.