BERNADEL v. BERAN (2000)

Supreme Court, Appellate Division, Second Department, New York.

Gerard BERNADEL, respondent, v. Kalicharran BERAN, appellant.

Decided: March 13, 2000

LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN and SANDRA J. FEUERSTEIN, JJ.

Cheven, Keely & Hatzis, New York, N.Y. (Thomas Torto of counsel), for appellant. Russo, Darnell & Lodato, LLP, East Meadow, N.Y. (Adam W. Weiss of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated June 17, 1999, which denied his 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 defendant's expert asserted conclusorily that the plaintiff's condition was “in part related to a pre-existing multi-level degenerative disc condition of the cervical and lumbosacral spines as noted by [magnetic resonance imaging reports]” and in part related to the accident. Since this assertion was based on unsubmitted and unsworn magnetic resonance imaging reports, the defendant failed to establish a prima facie case of entitlement to judgment as a matter of law.

MEMORANDYM BY THE COURT.

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