Opinion
April 29, 1996
Appeal from the Supreme Court, Suffolk County (Newmark, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's motion is granted, and the complaint is dismissed.
The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). We agree with the Supreme Court that the defendant met his initial burden of demonstrating that the plaintiff did not sustain a serious injury. Once a defendant submits evidence demonstrating the lack of a serious injury, the burden shifts to the plaintiff to come forward with sufficient evidence to overcome the defendant's motion ( see, Gaddy v. Eyler, 79 N.Y.2d 955). In finding that the plaintiff met this burden, the Supreme Court improperly relied upon the unsworn medical report of the plaintiff's own examining physician ( see, Pagano v. Kingsbury, 182 A.D.2d 268). The remaining evidence submitted by the plaintiff was insufficient to create an issue of fact ( see, Gaddy v. Eyler, supra; Rhind v. Naylor, 187 A.D.2d 498; O'Neill v. Rogers, 163 A.D.2d 466; Konco v. E.T.C. Leasing Corp., 160 A.D.2d 680). Thus, summary judgment should have been granted to the defendant ( see, Insurance Law § 5104 [a]; Licari v. Elliott, 57 N.Y.2d 230). Bracken, J.P., Miller, Joy, Hart and Krausman, JJ., concur.