DEL v. EBERHART CONSTRUCTION CO (1999)

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

Mariana Donoso DEL, et al., respondents, v. EBERHART CONSTRUCTION CO., et al., appellants.

Decided: March 15, 1999

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN and DANIEL F. LUCIANO, JJ.

Galvano & Xanthakis, New York, N.Y. (Anthony Xanthakis of counsel), for appellants. Michael A. Cervini, Jackson Heights, N.Y. (Robin Mary Heaney of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Goldstein, J.), dated June 26, 1998, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Mariana Donoso Del did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The medical reports submitted by the defendants in support of their motion for summary judgment were affirmed under penalty of perjury (see, CPLR 2106) and made out a prima facie case that the plaintiff Mariana Donoso Del did not sustain a serious injury within the meaning of Insurance Law § 5102(d). However, the affirmation of Dr. Jose Acevedo which the plaintiffs submitted in opposition to the motion raised a triable issue of fact (see, CPLR 3212 [b] ).

MEMORANDUM BY THE COURT.

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