Opinion
November 18, 1992
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Boomer, J.P., Pine, Lawton, Boehm and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of defendants' counsel, to the extent it purports to tender expert medical evidence, lacks probative value on the issue whether plaintiff sustained a serious injury (see, Zoldas v Louise Cab Corp., 108 A.D.2d 378). Similarly lacking probative value on that issue is the affidavit and deposition testimony of defendant, Mark Andry, that immediately after the accident, he saw no blood on plaintiff's person and she did not complain of pain. Thus, defendants failed to meet their initial burden of demonstrating their entitlement to judgment in their favor as a matter of law by the submission of evidentiary proof in admissible form. Plaintiff, therefore, had no burden to go forward and submit evidence "to establish a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102" (DeAngelo v Fidel Corp. Servs., 171 A.D.2d 588; see, Logan v Laidlaw School Tr., 175 A.D.2d 568, 569; Mulhauser v Wood, 107 A.D.2d 1019, appeal dismissed 65 N.Y.2d 637).