Opinion
01-07710
Submitted May 1, 2002
May 20, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), entered July 25, 2001, which denied his motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Roderick Correa on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Arlene Zalayet, Mineola, N.Y. (Robert T. Baer of counsel), for appellant.
Saltzman Chetkof Rosenberg, LLP, Garden City, N.Y. (Lee Rosenberg of counsel; Brian A. Super on the brief), for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER and THOMAS A. ADAMS, JJ.
ORDERED that the order is affirmed, with costs.
On his motion for summary judgment, the defendant failed to make a prima facie showing that the plaintiff Roderick Correa did not sustain a serious injury as a result of the subject motor vehicle accident. While a defendant may rely upon a plaintiff's unsworn medical records to establish that the plaintiff did not sustain a serious injury (see Pagano v. Kingsbury, 182 A.D.2d 268), the unsworn report prepared by the injured plaintiff's examining chiropractor upon which the defendant relied in support of his motion failed to establish, as a matter of law, that the injured plaintiff did not sustain a serious injury in the subject accident (see Martin v. Pietrzak, 273 A.D.2d 361). Since the defendant failed to make out a prima facie case that he was entitled to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs' opposition papers (see Mariaca-Olmos v. Mizrhy, 226 A.D.2d 437, 438). Furthermore, we decline to consider the affirmation of the defendant's examining orthopedist, which was improperly submitted for the first time in the defendant's reply papers (see CPLR 2214; Scott v. Albord, 292 A.D.2d 367; Klimis v. Lopez, 290 A.D.2d 538; Feratovic v. Lun Wah, Inc., 284 A.D.2d 368).
SANTUCCI, J.P., SMITH, KRAUSMAN, H. MILLER and ADAMS, JJ., concur.