FORTUNE v. Paul Grima, Defendant.

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

Daniel FORTUNE, Plaintiff-Appellant, v. SACKS AND SACKS, ESQS., Defendant-Respondent, Paul Grima, Defendant.

Decided: May 30, 2000

WALLACH, J.P., ANDRIAS, SAXE and BUCKLEY, JJ. Bert Bauman, for Plaintiff-Appellant. Scott N. Singer, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Harold Tompkins, J.), entered October 18, 1999, dismissing the complaint pursuant to an order which, in an action for legal malpractice arising out of defendant law firm's handling of an action for personal injuries sustained by plaintiff in a car accident, granted defendant's motion for summary judgment, unanimously affirmed, without costs.

The action was properly dismissed upon a record showing that plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102(d) in the car accident, and therefore could not have prevailed in the personal injury action in which defendant allegedly committed malpractice.   Such showing was made, prima facie, in defendant's initial submissions in support of its motion for summary judgment, namely, by way of plaintiff's own pleadings, bill of particulars and deposition testimony (see, Craft v. Brantuk, 195 A.D.2d 438, 600 N.Y.S.2d 251), in which plaintiff admits that after his surgery nine weeks after the accident he was able to resume his usual activities with only slight discomfort (see, Licari v. Elliott, 57 N.Y.2d 230, 238-239, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Hutchinson v. Beth Cab Corp., 207 A.D.2d 283, 612 N.Y.S.2d 10).   In opposition, plaintiff submitted no medical proof, choosing to argue instead, incorrectly, that the absence of medical proof in defendant's initial submission necessarily rendered its prima facie showing deficient.   We note that we do not consider the unsworn reports of plaintiff's chiropractor and orthopedic surgeon that defendant first submitted in his reply papers.