Marchione v. Cordero

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Schmidt, J.), dated July 28, 1994, which granted the defendant Anthony Cordero’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff brought this personal injury action against the 510 defendant Anthony Battaglia and the appellant Anthony Cordero after she was allegedly injured in a two-car automobile accident. By order dated February 28, 1994, this Court reversed an order of the Supreme Court, Nassau County, dated January 9, 1992 which denied the defendant Battaglia’s motion for summary judgment (see, Marchione v Battaglia, 201 AD2d 708). This Court dismissed the plaintiffs complaint as against Battaglia upon a finding that the plaintiff failed to make out a prima facie case that she sustained serious injury in the underlying accident. The action insofar as against the defendant Cordero was severed (see, Marchione v Battaglia, supra). Relying on this Court’s decision and order on his codefendant’s appeal, Cordero made a successful motion for summary judgment dismissing the complaint insofar as against him. The plaintiff now appeals. We agree with the plaintiff that on the defendant Cordero’s motion for summary judgment she was free to submit additional evidence to Supreme Court concerning injuries allegedly suffered as a result of the underlying accident which required surgery after the defendant Battaglia’s appeal was filed. However, the evidence submitted by the plaintiff was insufficient to make out a prima facie case that she suffered serious injury. The doctor’s reports submitted by her were unsworn, and therefore were insufficient to defeat Cordero’s motion (see, Grasso v Angerami, 79 NY2d 813; Marsh v Wolfson, 186 AD2d 115). Thus, Cordero’s motion for summary judgment was properly granted (see, Marchione v Battaglia, supra). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.