Opinion
December 23, 1993
Appeal from the Supreme Court, Franklin County (Plumadore, J.).
On January 26, 1990, plaintiff Daniel M. Dudek and his daughter, plaintiff Pamela A. Dudek, were sitting in a vehicle when it was struck in the rear by a vehicle operated by defendant. This negligence action, which included a derivative claim for plaintiff Joan D. Dudek, was commenced to recover damages for the injuries they sustained. Following completion of discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court partially granted the motion by dismissing the complaint of Daniel Dudek and Joan Dudek. The court found that Daniel Dudek did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence reciting the material facts and showing that the cause of action has no merit (see, GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965; La Frenire v Capital Dist. Transp. Auth., 96 A.D.2d 664). Here, defendant submitted his attorney's affidavit which incorporated the pleadings, pretrial deposition testimony and Daniel Dudek's "no-fault" file containing an uncertified hospital record. This latter submission did not satisfy defendant's burden as an uncertified hospital record is not admissible evidence (see, Guiher v South Buffalo Ry. Co., 190 A.D.2d 997; CPLR 4518 [c]). In addition, Daniel Dudek's testimony at his pretrial deposition does not indicate that his injury was less than required under Insurance Law § 5102 (d). Hence, defendant's motion should have been denied in all respects (see, Rapp v Suriano, 162 A.D.2d 837; Plouffe v Rogers, 144 A.D.2d 218). This disposition renders the appeal from the order entered on September 3, 1992 academic.
Weiss, P.J., Yesawich Jr., Crew III and Casey, JJ., concur. Ordered that the order entered July 17, 1992, is modified, on the law, without costs, by reversing so much thereof as granted defendant's motion as to plaintiffs Daniel M. Dudek and Joan A. Dudek; motion denied to that extent; and, as so modified, affirmed. Ordered that the appeal from order entered September 3, 1992 is dismissed, as academic, without costs.