Butera v. Woodhouse

Dec 30, 1999
Versions:267 A.D.2d 1039
700 N.Y.S.2d 336
1999 N.Y. App. Div. LEXIS 13816

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: 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 NY2d 955, 956-957; Lough v City of Syracuse, 191 AD2d 1018, 1019). The affidavit of plaintiff’s attorney lacks evidentiary value (see, Zuckerman v City of New York, 49 NY2d 557, 563; Lough v City of Syracuse, supra, at 1019); plaintiff’s affidavit, containing conclusory and subjective allegations of pain and discomfort, is likewise unavailing (see, Green v Gloede & Assocs. Leasing, 222 AD2d 1066, 1067); 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 NY2d 813, 814-815; Thousand v Hedberg, 249 AD2d 941; Lough v City of Syracuse, supra, at 1019). We therefore grant defendant’s motion and dismiss the complaint. (Appeal from Order of Supreme Court, Niagara County, Koshian, J.— Summary Judgment.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.