Cassese v. Leister , 739 N.Y.S.2d 121 ( 2002 )

—Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered December 29, 2000, which, insofar as appealed from, denied plaintiff-appellant’s motion to vacate a prior order dismissing the complaint as to him upon his default in opposing a motion to dismiss the complaint as to him on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs.

Although appellant testified at deposition that he was unable to work for some five months following the accident and that he had back surgery during that time, he submitted no documentation of either the surgery or the time missed from work. The only medical evidence submitted was an affirmation of a physician who examined plaintiff five years after the 1993 accident, and who had no access to any prior medical reports other than an MRI performed in 1995, which indicated no recurring or new injuries. Plaintiff’s deposition testimony, unsupported by a physician’s affidavit substantiating his claims of injury or impairment, does not suffice to raise a triable issue of fact as to whether he was incapacitated as required by the statute (see, Sigona v New York City Tr. Auth., 255 AD2d 231). Concur — Williams, J.P., Lerner, Buckley, Friedman and Marlow, JJ.