Parisi v. Levine

Jan 20, 1998
Versions:246 A.D.2d 583
667 N.Y.S.2d 283
1998 N.Y. App. Div. LEXIS 435

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered January 3, 1997, which granted the defendant’s motion for summary judgment dismissing the first cause of action upon the ground that the plaintiff failed to sustain a “serious injury” as defined by Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The defendant presented sufficient evidence to demonstrate, as a matter of law, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957; Licari v Elliott, 57 NY2d 230). In opposition, the plaintiff proffered a purported affidavit of her treating physician. However, the statement prepared by Dr. Alan Genicoff was neither sworn to nor affirmed to be true under the penalties of perjury and thus did not constitute competent evidence (see, CPLR 2106; Moore v Tappen, 242 AD2d 526; Reeves v Scopaz, 227 AD2d 606). Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.