Tatti v. Cummings

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Nassau County (McCaffrey, J.), dated February 7, 1991, which denied his motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. Inasmuch as the defendant submitted medical evidence in admissible form establishing that the plaintiff had not sustained a "serious injury”, it was incumbent upon the plaintiff to submit evidence in admissible form in order to succeed in defeating the defendant’s motion for summary judgment (Grasso v Angerami, 79 NY2d 813, 814; Pagano v Kingsbury, 182 AD2d 268, 270; see also, McHaffie v Antieri, 190 AD2d 780; Jacondino v Louis, 186 AD2d 109). The unsworn physician’s letter report submitted by the plaintiff in opposition to the motion was not in admissible form and therefore insufficient to raise triable issues of fact (Grasso u Angerami, supra, at 814). Further, the plaintiff’s continuing, subjective complaints of recurrent pain, as expressed in her examination before trial, are also insufficient "within the objective verbal definition of serious injury as contemplated by the No-Fault Insurance Law” (Scheer v Koubek, 70 NY2d 678, 679; see also, Rhind v Naylor, 187 AD2d 498; Duryea v Zung, 185 AD2d 912). Mangano, P. J., Thompson, Balletta and Joy, JJ., concur.