BUTERA v. WOODHOUSE

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

Gary L. BUTERA, Plaintiff-Respondent, v. Edward R. WOODHOUSE, as Executor of the Estate of Jessie G. Woodhouse, Deceased, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  LAWTON, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ. Jennifer S. Teach, Buffalo, for defendant-appellant.

Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint in this personal injury action arising from an automobile accident.   Defendant's submissions in support of the motion, including the affidavit and incorporated report of defendant's medical expert, are sufficient to establish as a matter of law that plaintiff did not sustain a serious injury, and plaintiff failed to meet his burden of raising a triable issue of fact (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Lough v. City of Syracuse, 191 A.D.2d 1018, 1019, 594 N.Y.S.2d 947).   The affidavit of plaintiff's attorney lacks evidentiary value (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Lough v. City of Syracuse, supra, at 1019, 594 N.Y.S.2d 947);  plaintiff's affidavit, containing conclusory and subjective allegations of pain and discomfort, is likewise unavailing (see, Green v. Gloede & Assocs. Leasing, 222 A.D.2d 1066, 1067, 635 N.Y.S.2d 878);  and the unsworn reports of plaintiff's physicians fail to raise an issue of fact because they are not in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813, 814-815, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Thousand v. Hedberg, 249 A.D.2d 941, 672 N.Y.S.2d 579;  Lough v. City of Syracuse, supra, at 1019, 594 N.Y.S.2d 947).   We therefore grant defendant's motion and dismiss the complaint.

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: