CARPLUK v. FRIEDMAN (2000)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Milano, J.), dated February 5, 1999, which denied their motion for summary judgment dismissing the complaint.

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

 The evidence submitted by the defendants established, prima facie, that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Lebron v. Camacho, 251 A.D.2d 295, 671 N.Y.S.2d 1025;  Davis v. New York City Tr. Auth., 248 A.D.2d 428, 669 N.Y.S.2d 670).   The medical reports submitted in opposition to the motion did not constitute competent evidence (see, CPLR 2106;  Grasso v. Angerami, 79 N.Y.2d 813, 814, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Mobley v. Riportella, 241 A.D.2d 443, 660 N.Y.S.2d 57;  Attivissimo v. Kugler, 226 A.D.2d 658, 641 N.Y.S.2d 730;   Feintuch v. Grella, 209 A.D.2d 377, 619 N.Y.S.2d 593) and the affirmation of the plaintiffs' attorney, which was based on incompetent evidence and was made without personal knowledge of the plaintiffs' injuries, was without evidentiary value (see, Sloan v. Schoen, 251 A.D.2d 319, 673 N.Y.S.2d 1017).

 Moreover, the plaintiff Robert Carpluk failed to demonstrate that he was prevented from performing substantially all of the material acts which constituted his usual and customary daily activities for a period of not less than 90 days during the 180-day period immediately following the accident (see, Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Atamian v. Mintz, 216 A.D.2d 430, 628 N.Y.S.2d 367;  Zelenak v. Clark, 170 A.D.2d 677, 567 N.Y.S.2d 92;  Phillips v. Costa, 160 A.D.2d 855, 554 N.Y.S.2d 288;  Ciaccio v. J & R Home Improvements, 149 A.D.2d 558, 539 N.Y.S.2d 1007).

MEMORANDUM BY THE COURT.