CRUSE v. BERMAN (2000)

In related actions to recover damages for personal injuries, the defendant Larry Berman appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated August 10, 1999, as denied his motion for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against him on the ground that none of the plaintiffs in that action sustained a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint in Action No. 1 is dismissed insofar as asserted against the appellant, and that action is severed against the remaining defendant.

The appellant established prima facie that the injuries sustained by the plaintiffs in Action No. 1 were not serious.   The orthopedist and the neurologist who examined those plaintiffs each concluded that they had not sustained orthopedic injuries, and that the results of their neurological examinations were normal (see, Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).

The only evidence submitted by the plaintiffs Verna Hall and Mollie Witsell in opposition to the appellant's motion was unsworn, and thus not competent (see, Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692).   The affirmed report prepared by an osteopath, which the plaintiff Christine Cruse submitted in opposition to the motion, failed to set forth the objective tests that were performed in arriving at the conclusions concerning, inter alia, alleged restrictions in that plaintiff's range of motion in her head and torso (see, Smith v. Askew, 264 A.D.2d 834, 695 N.Y.S.2d 405).   Therefore, the appellant's motion for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against him should have been granted.

MEMORANDUM BY THE COURT.