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DONNA PEROVICH, ETC., ET AL., APPELLANTS, v. STEPHEN M. LIOTTA, ET AL., RESPONDENTS.

DECISION ORDER

ORDERED that the appeal from the order dated November 1, 1999, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated June 10, 1999, is affirmed; and it is further,

ORDERED that the respondents are awarded one bill of costs.

The Supreme Court properly granted the defendants' motion for summary judgment. In support of their motion, the defendants established a prima facie case that neither of the plaintiffs sustained a serious injury as defined by Insurance Law § 5102(d) (see, Gaddy v. Eyler, 79 N.Y.2d 955). The plaintiffs' evidence submitted in opposition to the motion was insufficient to raise a triable issue of fact. The affidavit of the plaintiffs' treating chiropractor failed to indicate what objective medical tests he performed to measure the restrictions of motions suffered by the respective plaintiffs (see, Grossman v. Wright, 268 A.D.2d 79 [2d Dept., May 8, 2000]; Cabri v. Park, 260 A.D.2d 525; Merisca v. Alford, 243 A.D.2d 613; Lincoln v. Johnson, 225 A.D.2d 593). The Supreme Court correctly refused to consider the unsworn medical records attached to the affidavit of the plaintiffs' chiropractor (see, Friedman v. U-Haul Truck Rental, 216 A.D.2d 266; Shay v. Jerkins, 263 A.D.2d 475; Decayette v. Kreger Truck Renting, 260 A.D.2d 342; Williams v. Hughes, 256 A.D.2d 461).

The appeal from the order dated November 1, 1999, must be dismissed. The Supreme Court properly treated the plaintiffs' motion as a motion for reargument, the denial of which is not appealable (see, Stillway v. Guzewicz, 261 A.D.2d 392; McGill v. Polytechnic Univ., 235 A.D.2d 402).

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PEROVICH v. LIOTTA
(Jun 19, 2000)