Opinion
Submitted October 20, 1999
December 6, 1999
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated January 20, 1999, which granted the motion of the defendant Sermo Siddon for summary judgment dismissing the complaint insofar as asserted against him, and, pursuant to CPLR 3212(b), dismissed the complaint insofar as asserted against the defendant Robert Delgado.
Akin Smith, P.C., New York, N.Y. (Derek T. Smith and Zafer A. Akin of counsel), for appellants.
Cheven, Keely Hatzis (Thomas Torto, New York, N.Y., of counsel), for respondent Sermo Siddon.
Rivkin, Radler Kremer, Uniondale, N.Y. (Evan H. Krinick and Stuart M. Bodoff of counsel), for respondent Robert Delgado.
SONDRA MILLER, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
ORDERED that the order is affirmed, with costs.
The medical reports affirmed to be true under penalty of perjury by an orthopedist, Dr. Kenneth Falvo, and a neurologist, Dr. Terence McAlarney, made out a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d). The medical evidence submitted by the plaintiffs in opposition to the motion was neither sworn to nor affirmed to be true under penalty of perjury and thus did not constitute competent evidence ( see, CPLR 2106; Moore v. Tappen, 242 A.D.2d 526). Accordingly, the plaintiffs failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557).
S. MILLER, J.P., THOMPSON, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.