holding that when plaintiff submits proof of "serious injury" in inadmissible form, "an acceptable excuse for the deficiency [must be] offered"Summary of this case from Scotto v. Moraldo
Decided December 23, 1991
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Robert F. Doran, J.
Lawrence J. Zyra for appellant.
Arete Kontogiannis for respondent.
The order of the Appellate Division should be affirmed, with costs.
In opposition to defendant's motion for summary judgment pursuant to Insurance Law § 5102 (d), plaintiff tendered proof of "serious injury" in inadmissible form, namely an unsworn doctor's report. Inasmuch as plaintiff did not offer any excuse for his failure to provide the medical report in proper form, we need not consider whether proof of serious injury in inadmissible form is sufficient to defeat a motion for summary judgment pursuant to Insurance Law § 5102 (d), if an acceptable excuse for the deficiency is offered.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.