Cwiekala v. Siddon , 699 N.Y.S.2d 297 ( 1999 )

—In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated January 20, 1999, which granted the motion of the defendant Sermo Siddon for summary judgment dismissing the complaint insofar as asserted against him, and, pursuant to CPLR 3212 (b), dismissed the complaint insofar as asserted against the defendant Robert Delgado.

Ordered that the order is affirmed, with costs.

The medical reports affirmed to be true under penalty of peijury by an orthopedist, Dr. Kenneth Falvo, and a neurologist, Dr. Terence McAlarney, made out a prima facie case that neither plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). The medical evidence submitted by the plaintiffs in opposition to the motion was neither sworn to nor affirmed to be true under penalty of perjury and thus did not constitute competent evidence (see, CPLR 2106; Moore v Tappen, 242 AD2d 526). Accordingly, the plaintiffs failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557). S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.