BLACK v. REGALADO

Reset A A Font size: Print

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

Sanielle BLACK, et al., Plaintiffs-Appellants, v. Leoncio REGALADO, Defendant-Respondent.

Decided: January 09, 2007

SULLIVAN, J.P., WILLIAMS, SWEENY, CATTERSON, MALONE, JJ. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants. Baker, McEvoy, Morrissey & Moskovitz, P.C., New York (Holly E. Peck of counsel), for respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered January 27, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence that neither plaintiff satisfied the serious injury threshold of Insurance Law § 5102(d) (Franchini v. Palmieri, 1 N.Y.3d 536, 775 N.Y.S.2d 232, 807 N.E.2d 282 [2003] ).   Plaintiffs failed to satisfy their evidentiary burden of submitting, in opposition, “objective medical proof of a serious injury causally related to the accident in order to survive summary dismissal” (Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ).   The unsworn medical documentation submitted by plaintiffs was not properly before the court, and thus was correctly not considered (Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991] ).   We also note the affirmation by plaintiff's medical expert failed to explain adequately the reason for the 15-month gap in their treatment, and their excuse was not supported by the record.