Legrow v. Stein ( 1998 )

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated November 25, 1997, which granted the plaintiffs’ motion for summary judgment on the issue of liability and denied his cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiffs’ motion is denied, the defendant’s cross motion is granted, and the complaint is dismissed.

The Supreme Court erred in denying the defendant’s cross motion for summary judgment dismissing the complaint on the ground that the injured plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d). The defendant’s submissions established a prima facie case that the injured plaintiff did not sustain a serious injury in the underlying automobile collision (see, Gaddy v Eyler, 79 NY2d 955).

The plaintiffs’ opposition papers were insufficient to raise a triable issue of fact. The medical records and reports submitted by the plaintiffs in opposition to the cross motion were not in admissible form, and therefore, should not have been considered (see, Grasso v Angerami, 79 NY2d 813, 814). Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.