Troche v. New York City Transit Authority

— In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated November 12, 2003, as denied their motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. The Supreme Court correctly determined that the defendants failed to make a prima facie showing that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The reports of the defendants’ expert were not in admissible form (see Pagano v Kingsbury, 182 AD2d 268, 270 [1992]; Gleason v Huber, 188 AD2d 581, 582 [1992]). Moreover, while a defendant’s burden of submitting evidence to demonstrate that the plaintiffs did not sustain a serious injury “may be satisfied by submitting [the] plaintiffs deposition testimony and the medical records of the plaintiff that were supplied by [the] plaintiffs counsel” (Hodges v Jones, 238 AD2d 962 [1997]), the excerpts of deposition testimony and the scant medical reports submitted by the defendants failed to demonstrate the lack of a serious injury sustained by any of the plaintiffs. H. Miller, J.P., S. Miller, Goldstein, Mastro and Lifson, JJ., concur.