| Migliaccio v Miruku |
| 2008 NY Slip Op 09282 [56 AD3d 393] |
| November 25, 2008 |
| Appellate Division, First Department |
| Cathy Migliaccio et al., Appellants, v Fatmir Miruku,Respondent. |
—[*1] Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondent.
Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered September 5,2007, which granted defendant's motion for summary judgment dismissing the complaint,unanimously affirmed, without costs.
The injured plaintiff alleged that a car driven by defendant backed into her in a crosswalk inQueens in March 2003. She testified that she missed one week from work immediately after theaccident, and an additional two weeks over the course of the year. She stopped going fortreatment in December of that year because she said it was not helping with the pain.
Defendant moved for summary judgment on the ground that plaintiff did not suffer a "seriousinjury" within the meaning of Insurance Law § 5102 (d), submitting the reports of variousmedical experts. A neurologist reported a normal examination, with mild tenderness in thecervical and lumbar spine. An orthopedic surgeon concluded that the patient had suffered sprainsof the neck, back and right knee, and made a complete recovery. A radiologist reviewed MRIstaken seven and eight months after the accident, which he said showed longstanding degenerativeconditions in the cervical spine and right knee, not causally related to the accident. This evidencewas sufficient to sustain defendant's initial burden of establishing that the injured plaintiff hadnot suffered a serious injury, and the burden then shifted to plaintiffs to demonstrate a triableissue of fact by coming forward with evidence to overcome defendant's submissions (Gaddy vEyler, 79 NY2d 955, 956-957 [1992]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]).
Although plaintiffs submitted reports of numerous experts, all but one were unsworn and notaffirmed. Statements and reports by the injured party's examining and treating physicians that areunsworn or not affirmed to be true under penalty of perjury do not meet the test of competent,admissible medical evidence sufficient to defeat a motion for summary judgment (McLoyrd vPennypacker, 178 AD2d 227, 228 [1991], lv denied 79 NY2d 754 [1992]). The onlyreport in admissible form reflected findings made almost four years after the accident, and statedin conclusory fashion that the conditions noted were causally related to the accident. However, itdid not address the findings of defendant's experts, which were supported by the patient's MRIs,that the conditions were degenerative in nature. Conclusory assertions tailored to meet statutoryrequirements are insufficient to raise a triable issue of fact concerning serious injury(Gaddy, 79 NY2d at 958). In the absence of admissible contemporaneous evidence of aserious injury, the [*2]proffered conclusions of plaintiffs' expertare insufficient (Petinrin v Levering,17 AD3d 173 [2005]). Concur—Mazzarelli, J.P., Friedman, Nardelli, Buckley andFreedman, JJ.