Fraleigh v. Casson

Fraleigh v Casson (2020 NY Slip Op 04539) Fraleigh v Casson 2020 NY Slip Op 04539 Decided on August 19, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on August 19, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. JOHN M. LEVENTHAL VALERIE BRATHWAITE NELSON PAUL WOOTEN, JJ. 2019-01833 (Index No. 5263/13) [*1]Brian S. Fraleigh, appellant, v Brigid D. Casson, etc., respondent. Theodore G. Hartman, Albany, NY, for appellant. Gentile & Tambasco, Melville, NY (Yamile R. Al-Sullami of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (James D. Pagones, J.), dated December 17, 2018. The order granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident. The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted the defendant's motion, and the plaintiff appeals. On appeal, the plaintiff does not raise any arguments relating to the Supreme Court's determination that the defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957; see also Sylvain v Maurer, 165 AD3d 1203, 1204; DiLernia v Khan, 62 AD3d 644, 645). In opposition, the plaintiff failed to raise a triable issue of fact. The unaffirmed reports of the plaintiff's treating physicians were not in admissible form and, thus, they were insufficient to raise a triable issue of fact (see Grasso v Angerami, 79 NY2d 813, 814-815; Yunatanov v Stein, 69 AD3d 708, 709). Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the complaint. CHAMBERS, J.P., LEVENTHAL, BRATHWAITE NELSON and WOOTEN, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court