Opinion
2000-08879
Submitted October 10, 2001.
December 10, 2001.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Putnam County (Hickman, J.), dated August 15, 2000, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that neither plaintiff had sustained a serious injury within the meaning of Insurance Law — 5102(d), and granted the cross motion of the plaintiff Rosetta Mazzotta for summary judgment dismissing the first cause of action on behalf of the plaintiff Andrea Mazzotta on the ground that he did not sustain a serious injury within the meaning of Insurance Law — 5102(d), and to dismiss the defendant's counterclaim against her for contribution for personal injuries sustained by Andrea Mazzotta.
ROBERT C. AGEE, Bronxville, N.Y., for appellant-respondent ANDREA MAZZOTTA and appellant ROSETTA MAZZOTTA.
EISENBERG KIRSCH, Liberty, N.Y. (PHILIP E. CONATY of counsel), for counterclaim defendant-respondent ROSETTA MAZZOTTA.
MCCABE MACK, LLP, Poughkeepsie, N.Y. (GERIANNE HANNIBAL of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, ANITA R. FLORIO, HOWARD MILLER, BARRY A. COZIER, JJ.
ORDERED that the appeal by the plaintiff Rosetta Mazzotta from so much of the order as granted her cross motion is dismissed, as she is not aggrieved thereby (see, CPLR 5511); and it is further,
ORDERED that the appeal by the plaintiff Andrea Mazzotta from so much of the order as granted the branch of the cross motion which was for summary judgment dismissing the counterclaim is dismissed, as he is not aggrieved thereby (see, CPLR 5511); and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that the respondent Jerome Vacca is awarded one bill of costs.
The defendant Jerome Vacca established a prima facie case that the injuries sustained by the plaintiff Rosetta Mazzotta were not serious within the meaning of Insurance Law — 5102(d) by submitting an affirmed report of an examining physician who concluded that there was no disability (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957), and the unsworn report of Rosetta's treating physician who concluded that the disability was mild in nature (see, Gaddy v. Eyler, supra, at 957; Licari v. Elliott, 57 N.Y.2d 230, 236; Pagano v. Kingsbury, 182 A.D.2d 268, 271).
Rosetta's opposition, however, was insufficient to raise a triable issue of fact, since she submitted an unsworn medical report, which was not in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813). In addition, the affirmation of her treating physician failed to set forth the objective tests he performed in arriving at his conclusion that her injuries were permanent in nature and not solely the result of her preexisting degenerative disc disease (see, Grossman v. Wright, 268 A.D.2d 79, 85; Kauderer v. Penta, 261 A.D.2d 365). In addition, Rosetta admitted that she resumed her work as a waitress within weeks after the accident.
The plaintiff Andrea Mazzotta failed to raise a triable issue of fact that he sustained a serious injury within the meaning of Insurance Law — 5102(d) (see, Gaddy v. Eyler, supra), since he admitted that he did not suffer any physical injuries as a result of the accident, and the medical evidence regarding his psychological condition after the accident failed to show that he suffered an impairment sufficient to constitute a serious injury (see, Sellitto v. Casey, 268 A.D.2d 753, 755; Nolan v. Ford, 100 A.D.2d 579, affd 64 N.Y.2d 681).
SANTUCCI, J.P., ALTMAN, FLORIO, H. MILLER and COZIER, JJ., concur.