Opinion
October 5, 1992
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Ordered that the order is affirmed, with costs.
The defendants moved to dismiss the complaint for failure to state a cause of action, or for summary judgment. In support of their motion the defendants submitted, inter alia, the unsworn medical report of their examining physician. In opposition, the plaintiff offered, inter alia, his own affidavit as well as the affidavit of his treating orthopedist.
Initially, we note that although the complaint was dismissed for failure to state a cause of action, since the defendants alternatively moved for summary judgment relief, it is, as stated in the Supreme Court, "appropriate to consider whether the plaintiff has a cause of action rather than whether he has stated one" (see, Rovello v Orofino Realty Co., 40 N.Y.2d 633; see also, Zack Metal Co. v International Nav. Corp., 67 N.Y.2d 892).
With regard to the plaintiff's allegation of "serious injury", the only proof thereof which was submitted in admissible form was the affidavit of the plaintiff's own doctor (see, Grasso v Angerami, 79 N.Y.2d 813; see also, Zuckerman v City of New York, 49 N.Y.2d 557). However, this affidavit is conclusory in nature and does not state that the plaintiff suffers from any limitation of movement, and is thus insufficient to sustain a finding of serious injury (see, De Filippo v White, 101 A.D.2d 801; Padron v Hood, 124 A.D.2d 718; Covington v Cinnirella, 146 A.D.2d 565).
Therefore, although the defendants did not submit medical proof in admissible form, the complaint was properly dismissed since "`the lack of merit to plaintiff's serious injury claim is patent' from the medical evidence submitted by plaintiff [himself]" (Covington v Cinnirella, 146 A.D.2d 565, 566, supra, quoting Popp v Kremer, 124 A.D.2d 720, 722; see also, Pagano v Kingsbury, 182 A.D.2d 268; Padron v Hood, 124 A.D.2d 718, supra).
We have considered the plaintiff's remaining contentions and find them to be without merit. Mangano, P.J., Harwood, Miller and Santucci, JJ., concur.