Doggett v. Kelly

—In an action, inter alia, to recover damages for personal injuries, the defendants Thomas Anderson and Jamaica Water Supply Co. appeal from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated March 16, 2001, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that neither of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102 (d), and the defendant Theresa C. Kelly separately appeals from so much of the same order as denied her separate motion for summary judgment dismissing the complaint insofar as asserted against her on the same ground. Ordered that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs. The majority of the medical reports submitted by the defendants in support of their respective motions for summary judgment dismissing the complaint were neither sworn to nor affirmed to be true under penalty of perjury and thus did not constitute competent evidence (see Moore v Tappen, 242 AD2d 526, 527). The remaining affirmed medical reports of the defendants’ examining neurologist failed to demonstrate that the plaintiffs’ injuries were not causally related to the subject accident, or that they were not serious within the meaning of Insurance Law § 5102 (d) (see Junco v Ranzi, 288 AD2d 440; Papadonikolakis v First Fid. Leasing Group, 283 AD2d 470). Since the defendants failed to establish their entitlement to judgment as a matter of law, the sufficiency of the papers in opposition to the appellants’ respective motions need not be considered (see Chaplin v Taylor, 273 AD2d 188; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438). Altman, J.P., Feuerstein, Friedmann, Schmidt and Townes, JJ., concur.