Defendant's contention that appellant did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d) was sufficiently demonstrated by appellant's deposition testimony and the medical records she supplied in disclosure (McNair v Ofori, 198 A.D.2d 47), making it appellant's burden to come forward with "competent, admissible medical evidence" sufficient to raise an issue of fact that she did sustain such an injury (McLoyrd v. Pennypacker, 178 A.D.2d 227, 228, lv denied 79 N.Y.2d 754). The physician's statements appellant offered on her motion to renew failed to meet this burden, first because they were neither sworn nor affirmed to be true under penalty of perjury (supra), and also because they were not based on any diagnostic tests objectively measuring the alleged harm caused to appellant's fetus when, unaware that she was pregnant, x-rays were taken after the accident (Deangelo v. Marcia Serv. Corp., 199 A.D.2d 58), or other evidence tending to show that the abortion appellant had was advisable because of harm to the fetus caused by either the accident or ensuing treatment.
Concur — Murphy, P.J., Wallach, Ross, Rubin and Williams, JJ.