Justice Jack Battaglia
Polk moved for dismissal arguing Pierre did not sustain a "serious injury" as defined by Insurance Law §5102(d). The court found a defendant who submitted admissible proof plaintiff had a full range of motion, and suffered no disabilities causally related to a car accident, established prima facie plaintiff did not sustain a serious injury under §5102(d), despite the existence of an MRI showing herniated or bulging discs. Pierre submitted medical affidavits, but the court found none were admissible as evidence as none of the doctors’ statements qualified as an affirmation admissible under CPLR 2016. The court noted Polk did not object to consideration of Pierre’s submissions on evidentiary grounds, noting occasionally when an opposing party fails to object, the objection was deemed waived. It ruled where an affirmation or affidavit was not sworn to before an appropriate officer or affirmed under penalties of perjury it could not be considered as evidence on a summary judgment motion even if there was no objection. Thus, Polk’s motion must be granted and the complaint dismissed. Pierre was given a chance to renew her opposition, so as not to be penalized for her attorney’s deficiencies, as the submissions would have been sufficient to raise triable issues if they were in admissible form.
