Rotino v. Andry

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of defendants’ counsel, to the extent it purports to tender expert medical evidence, lacks probative value on the issue whether plaintiff sustained a serious injury (see, Zoldas v Louise Cab Corp., 108 AD2d 378). Similarly lacking probative value on that issue is the affidavit and deposition testimony of defendant, Mark Andry, that immediately after the accident, he saw no blood on plaintiff’s person and she did not complain of pain. Thus, defendants failed to meet their initial burden of demonstrating their entitlement to judgment in their favor as a matter of law by the submission of evidentiary proof in admissible form. Plaintiff, therefore, had no burden to go forward and submit evidence "to establish a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102” (DeAngelo v Fidel Corp. Servs., 171 AD2d 588; see, Logan v Laidlaw School Tr., 175 AD2d 568, 569; Mulhauser v Wood, 107 AD2d 1019, appeal dismissed 65 NY2d 637). (Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.) Present — Boomer, J. P., Pine, Lawton, Boehm and Davis, JJ.