Summary
In Mu Ying Zhu v. Zhi Rong Lin, 1 A.D.3d 416, 766 N.Y.S.2d 897, (2nd Dept., 2003), the Court properly rejected a physician's affidavit submitted for the first time in reply papers.
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2002-07386
Submitted October 8, 2003.
November 10, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated February 27, 2002, which granted the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
John M. Ioannou (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellants.
Cheven, Keely Hatzis (Jaffe Nohavicka, New York, N.Y. [Stacy R. Seldin] of counsel), for respondent Zhi Rong Lin.
Thomas Torto, New York, N.Y. (Mary Ellen O'Brien and Jason Levine of counsel), for respondent Diana M. Maciera.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, SANDRA L. TOWNES, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with one bill of costs.
The defendants each made a prima facie showing that the injured plaintiff did not sustain a serious injury as a result of the subject accident within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957; Varghese v. Ehret, 305 A.D.2d 402; McCauley v. Ross, 298 A.D.2d 506, 506-507; Holmes v. Hanson, 286 A.D.2d 750, 751). In opposition, the plaintiffs failed to raise a triable issue of fact. The magnetic resonance imaging reports of the injured plaintiff's radiologists did not constitute competent evidence ( see Grasso v. Angerami, 79 N.Y.2d 813, 814-815; Caldwell v. Kellner, 200 A.D.2d 702; Tatti v. Cummings, 193 A.D.2d 596). Furthermore, the injured plaintiff's self-serving allegations that she can no longer perform her daily duties and household chores were insufficient to raise a triable issue of fact as to whether she sustained a medically-determined injury of a nonpermanent nature which prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities ( see Young v. Ryan, 265 A.D.2d 547, 548; Rum v. Pam Transp., 250 A.D.2d 751).
Furthermore, the Supreme Court properly declined to consider the physician's affidavit improperly submitted by the plaintiff for the first time in a sur-reply ( see CPLR 2214; Klimis v. Lopez, 290 A.D.2d 538; Voytek Technology v. Rapid Access Consulting, 279 A.D.2d 470, 471).
FLORIO, J.P., KRAUSMAN, LUCIANO, TOWNES and RIVERA, JJ., concur.