Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 21, 2007. The order, insofar as appealed from, denied defendants' motion for summary judgment as to the 90/180-day category of serious injury.

Order, insofar as appealed from, reversed without costs, defendants' motion for summary judgment granted as to the 90/180-day category of serious injury and complaint dismissed.

In this action, plaintiff seeks to recover for serious injuries allegedly sustained in
a motor vehicle accident. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The court below granted defendants' motion for summary judgment with the exception of the 90/180-day category of serious injury. Defendants appeal from so much of the order as denied summary judgment with respect to the 90/180-day category.

In support of their motion for summary judgment, defendants submitted, inter alia, the unsigned, certified transcript of plaintiff's deposition testimony and plaintiff's verified bill of particulars. In denying defendants' motion as to the 90/180-day category, the court determined that the deposition transcript was incompetent evidence since it was unsigned and, thus, not in admissible form (see generally CPLR 3116, 3117). However, defendants were "merely seeking to use plaintiff's deposition as an admission, which need not be in deposition form. An unsigned but certified deposition transcript of a party can be used by the opposing party as an admission in [*2]support of a summary judgment motion" (Morchik v Trinity School, 257 AD2d 534, 536 [1999]; see also R.M. Newell Co. v Rice, 236 AD2d 843 [1997]; Arnold v Schmittau, 18 Misc 3d 135[A], 2008 NY Slip Op 50184[U] [App Term, 2d & 11th Jud Dists 2008]). The deposition transcript at bar contained plaintiff's admission that he returned to work 10 days after the accident. Further, plaintiff's admission in his verified bill of particulars, that he was "generally confined" to home and bed for 30 days and incapacitated from his job for 10 days as a result of the accident, was properly offered as evidence that plaintiff did not suffer a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (Insurance Law § 5102 [d]; see Byam v Waltuch, 50 AD3d 939 [2008]).

In view of the foregoing, defendants established their prima facie entitlement to judgment as a matter of law. Plaintiff failed to oppose the motion. Accordingly, the order, insofar as appealed from, is reversed, defendants' motion for summary judgment as to the 90/180-day category of serious injury is granted, and the complaint is dismissed.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008