Roderick Correa et al., Respondents, v. Warren Salke, Appellant

Roderick Correa et al., Respondents, v Warren Salke, Appellant. [742 NYS2d 557] [MAJORITY] —In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), entered July 25, 2001, which denied his motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Roderick Correa on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. On his motion for summary judgment, the defendant failed to make a prima facie showing that the plaintiff Roderick Correa did not sustain a serious injury as a result of the subject motor vehicle accident. While a defendant may rely upon a plaintiffs unsworn medical records to establish that the plaintiff did not sustain a serious injury (see Pagano v Kingsbury, 182 AD2d 268), the unsworn report prepared by the injured plaintiffs examining chiropractor upon which the defendant relied in support of his motion failed to establish, as a matter of law, that the injured plaintiff did not sustain a serious injury in the subject accident (see Martin v Pietrzak, 273 AD2d 361). Since the defendant failed to make out a prima facie case that he was entitled to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs’ opposition papers (see Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438). Furthermore, we decline to consider the affirmation of the defendant’s examining orthopedist, which was improperly submitted for the first time in the defendant’s reply papers (see CPLR 2214; Scott v Albord, 292 AD2d 367; Klimis v Lopez, 290 AD2d 538; Feratovic v Lun Wah, Inc., 284 AD2d 368). Santucci, J.P., Smith, Krausman, H. Miller and Adams, JJ., concur.