HOCHLERIN v. TOLINS

Ordered that the order is affirmed, with costs.

The defendant moved for summary judgment, contending that the plaintiff did not sustain a "serious injury" within the purview of Insurance Law § 5102 (d) (see, Licari v Elliott, 57 N.Y.2d 230). In support of his motion, the defendant relied, inter alia, on an unsworn report prepared by his examining physician, and two unsworn reports prepared by the plaintiff's own treating physicians.

Although a moving defendant may rely on the unsworn reports of the plaintiff's own physicians in support of a motion for summary judgment, the reports relied upon here do not demonstrate that the plaintiff had not suffered a "serious injury". Additionally, the unsworn report of the defendant's own expert was not in admissible form. Accordingly, the papers submitted in support of the motion were insufficient to make a prima facie showing of the defendant's entitlement to judgment as a matter of law (see, Pagano v Kingsbury, 182 A.D.2d 268).

In any event, the plaintiff carried his burden of establishing a prima facie case of "serious injury" pursuant to Insurance Law § 5102 (d) with the affidavits of two chiropractors (see, Marsh v Wolfson, 186 A.D.2d 115; Bates v Peeples, 171 A.D.2d 635; Spezia v De Marco, 173 A.D.2d 462; Morsellino v Frankel, 161 A.D.2d 748; Conde v Eric Serv. Corp., 158 A.D.2d 651).