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Ryan v. Xuda

Appellate Division of the Supreme Court of New York, Second Department
Oct 6, 1997
243 A.D.2d 457 (N.Y. App. Div. 1997)

Opinion

October 6, 1997

Appeal from the Supreme Court, Kings County (Rappaport, J.).


Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants' motion is granted, and the complaint is dismissed.

The defendants met their initial burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). It was therefore incumbent on the plaintiff to come forward with sufficient evidence to create an issue of fact ( see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957). The plaintiff failed to do so. In opposition to the motion, the plaintiff tendered proof of serious injury in inadmissible form; namely, unsworn doctors reports, and unsworn results of medical tests ( see, Grasso v. Angerami, 79 N.Y.2d 813; Pagano v. Kingsbury, 182 A.D.2d 268). Although the plaintiff submitted his own affidavit claiming an inability to engage in his customary daily activities, he did not submit a physician's affidavit substantiating the existence of a "medically determined" injury producing the alleged impairment of his activities (Insurance Law § 5102 [d]; see, Traugott v. Konig, 184 A.D.2d 765). Accordingly, the defendants were entitled to summary judgment dismissing the complaint ( see, Licari v. Elliott, 57 N.Y.2d 230).

Mangano, P.J., Copertino, Joy, Florio and Luciano, JJ., concur.


Summaries of

Ryan v. Xuda

Appellate Division of the Supreme Court of New York, Second Department
Oct 6, 1997
243 A.D.2d 457 (N.Y. App. Div. 1997)
Case details for

Ryan v. Xuda

Case Details

Full title:JOHN RYAN, Respondent, v. LEE XUDA et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 6, 1997

Citations

243 A.D.2d 457 (N.Y. App. Div. 1997)
663 N.Y.S.2d 220

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