[*1]
Cuevas v Mecca & Son Trucking Corp.
2004 NY Slip Op 50942(U)
Decided on August 6, 2004
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 6, 2004
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. WILLIAM P. McCOOE, J.P.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
570707/03

EVELYN CUEVAS, Plaintiff-Appellant,

against

MECCA & SON TRUCKING CORP. and WILLIE SMITH, Defendants-Respondents.


Plaintiff appeals from an order of the Civil Court, New York County, entered February 26, 2002 (Doris Ling-Cohan, J.), denying her motion to vacate an order entered August 24, 2001 (Robert Sackett, J.), granting defendants' motion for summary judgment dismissing the complaint upon plaintiff's default in appearing.


PER CURIAM:

Order entered February 26, 2002 (Doris Ling-Cohan, J.) affirmed, with $10 costs.

Assuming, in plaintiff's favor, that her default in appearing on the motion was excusable, it was incumbent upon plaintiff to establish a meritorious cause of action (see, Hores v. Gulalnic, 255 AD2d 292 [1998]). In opposition to defendants' prima facie showing that plaintiff did not sustain a "serious injury" (Insurance Law §5102[d]), plaintiff submitted medical reports that were neither affirmed nor sworn and thus failed to provide the requisite medical evidence of serious injury (see, Grasso v Angerami, 79 NY2d 813 [1991]; Charlton v Almaraz, 278 AD2d 145 [2000]; Cabreja v Morris, 309 AD2d 536 [2003]).

Even if tendered in admissible form, the reports were deficient and did not raise [*2]an issue of fact. The neurologist's report failed to adequately address defendants' evidence that plaintiff's complaints resulted from a congenital malformation, and not the "minor trauma" of the automobile accident (see, Franchini v Palmieri, 1 NY3d 536 [2003]; Shinn v Catanzaro, 1 AD3d 195 [2003]). Plaintiff also failed to offer sufficient objective evidence of the extent or degree of physical limitation resulting from the alleged disc injuries (See, Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Francis v Christopher, 302 AD2d 425 [2003]).

This constitutes the decision and order of the court.