Elisse Hanley, etc., et al., respondents, v. CITY OF NEW YORK (1999)

In an action to recover damages for personal injuries, (1) the plaintiff counterclaim-defendant Joanne Hanley appeals, as limited by her brief, from so much of (a) an order of the Supreme Court, Queens County (Polizzi, J.), dated May 18, 1998, as denied those branches of her motion which were for summary judgment dismissing that part of the counterclaim which was to compel her to contribute for the damages awarded for the injuries allegedly suffered by the infant plaintiffs Christian Hanley and Nathaniel Marcellin on the ground that those infant plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (b) an order of the same court dated January 15, 1999, as, upon renewal, vacated that portion of the order dated May 18, 1998, which dismissed so much of the counterclaim as sought to compel her to contribute for the damages awarded for the injuries allegedly suffered by the infant plaintiffs Elisse Hanley and Nathalia John, and denied her motion for summary judgment dismissing the counterclaim in its entirety, and (2) the defendants separately appeal, as limited by their brief, from so much of the order dated January 15, 1999, as upon renewal, vacated that portion of the order dated May 18, 1998, which dismissed the complaint insofar as asserted on behalf of the infant plaintiffs Elisse Hanley and Nathalia John and denied in its entirety their motion to dismiss the complaint insofar as asserted on behalf of Elisse Hanley, Christian Hanley, Nathalia John, and Nathaniel Marcellin.

ORDERED that the appeal from the order dated May 18, 1998 is dismissed, without costs or disbursements, as that order was superseded by the order dated January 15, 1999;  and it is further,

ORDERED that the order dated January 15, 1999 is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff counterclaim-defendant Joanne Hanley, while driving a vehicle in which the infant plaintiffs, Elisse Hanley, Christian Hanley, Nathalia John, and Nathaniel Marcellin, were passengers, was involved in an accident with a vehicle owned by the defendant City of New York and operated by the defendant Joseph Romeo.   The defendants interposed a counterclaim against Joanne Hanley with respect to the injuries allegedly suffered by the infant plaintiffs.   The Supreme Court properly denied the respective motions of Joanne Hanley and the defendants, which were based upon the alleged failure of each of the infant plaintiffs to sustain a “serious injury” within the meaning of Insurance Law § 5102(d).   The affirmed reports of chiropractors Dominick Garofalo and Richard Sollazzo which were submitted by the movants do not constitute competent evidence on this issue (see, Feintuch v. Grella, 209 A.D.2d 377, 619 N.Y.S.2d 593).   While the unsworn reports of chiropractor Keith Bierman did constitute competent evidence under the circumstances (see, Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692), they did not establish a prima facie case that the injuries sustained by the infant plaintiffs were not serious (see, Mendola v. Demetres, 212 A.D.2d 515, 622 N.Y.S.2d 309).

The appellants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.