Opinion
2001-10251
Submitted February 6, 2002
March 5, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Pincus, J.), dated October 17, 2001, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff Cyra Scott did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
Sobel, Ross, Fliegel Suss, LLP, New York, N.Y. (Slavko Ristich of counsel), for appellant.
Kagan Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for respondents.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, SONDRA MILLER, WILLIAM D. FRIEDMANN, THOMAS A. ADAMS, JJ.
ORDERED that the order is affirmed, with costs.
Contrary to the defendant's contentions, the Supreme Court properly denied his motion for summary judgment. The defendant's papers in support of his motion failed to establish that the injured plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d) in the subject collision (see, CPLR 3212[b]; cf., Gaddy v. Eyler, 79 N.Y.2d 955). Because the affirmed reports of the defendant's examining physicians were improperly submitted to the Supreme Court for the first time in his reply papers, we decline to consider them (see, CPLR 2214; Klimis v. Lopez, 290 A.D.2d 538 [2d Dept., Jan. 28, 2002]; Feratovic v. Lun Wah, Inc., 284 A.D.2d 368). Under these circumstances, we need not consider whether the plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see, Klimis v. Lopez, supra; Boland v. Dig Am., 277 A.D.2d 337).
PRUDENTI, P.J., FLORIO, S. MILLER, FRIEDMANN and ADAMS, JJ., concur.