Opinion
570707/03.
Decided August 6, 2004.
Plaintiff appeals from an order of the Civil Court, New York County, entered February 26, 2002 (Doris Ling-Cohan, J.), denying her motion to vacate an order entered August 24, 2001 (Robert Sackett, J.), granting defendants' motion for summary judgment dismissing the complaint upon plaintiff's default in appearing.
Order entered February 26, 2002 (Doris Ling-Cohan, J.) affirmed, with $10 costs.
PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Assuming, in plaintiff's favor, that her default in appearing on the motion was excusable, it was incumbent upon plaintiff to establish a meritorious cause of action (see, Hores v. Gulalnic, 255 AD2d 292). In opposition to defendants' prima facie showing that plaintiff did not sustain a "serious injury" (Insurance Law § 5102[d]), plaintiff submitted medical reports that were neither affirmed nor sworn and thus failed to provide the requisite medical evidence of serious injury (see, Grasso v. Angerami, 79 NY2d 813; Charlton v. Almaraz, 278 AD2d 145; Cabreja v. Morris, 309 AD2d 536).
Even if tendered in admissible form, the reports were deficient and did not raise an issue of fact. The neurologist's report failed to adequately address defendants' evidence that plaintiff's complaints resulted from a congenital malformation, and not the "minor trauma" of the automobile accident (see, Franchini v. Palmieri, 1 NY3d 536; Shinn v. Catanzaro, 1 AD3d 195). Plaintiff also failed to offer sufficient objective evidence of the extent or degree of physical limitation resulting from the alleged disc injuries (See, Toure v. Avis Rent A Car Sys., 98 NY2d 345; Francis v. Christopher, 302 AD2d 425).
This constitutes the decision and order of the court.