This case involves a personal injury action brought by plaintiff Gabrielle DeAngelo, who alleges that on February 20, 1988, while crossing West 235th Street, she was knocked down by a car driven by defendant Steven Allen Levine, owned by defendant Fidel Corp. Services, Inc., and leased by defendant Elkman Advertising Co., Inc. The instant appeal concerns whether plaintiff's complaint should be dismissed for failure to meet the no-fault threshold under Insurance Law § 5104 (a). Specifically, defendants assert that plaintiff's alleged injuries failed to meet the test to qualify as a "serious injury" as defined by Insurance Law § 5102 (d).
As the Supreme Court correctly noted, the initial burden was upon defendant to present evidence establishing that plaintiff has no cause of action; only when that burden was met would plaintiff be required to establish a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102. (Licari v Elliott, 57 N.Y.2d 230, 237, 239-240; Zoldas v Louise Cab Corp., 108 A.D.2d 378, 381-382 [1st Dept 1985]; McKnight v La Valle, 147 A.D.2d 902 [4th Dept 1989], lv denied 74 N.Y.2d 605; La Frenire v Capital Dist. Transp. Auth., 96 A.D.2d 664, 665 [3d Dept 1983].) Here, the court erred in concluding that defendants made a sufficient evidentiary showing to entitle them to relief since their evidence consisted of various unsworn medical reports by their physicians. (Zoldas v Louise Cab Corp., 108 A.D.2d, supra, at 383; La Frenire v Capital Dist. Transp. Auth., 96 A.D.2d, supra, at 665; cf., Sundack v Power Test Petro Corp., 150 A.D.2d 440 [2d Dept 1989].)
Moreover, plaintiff's submission of a medical affidavit sworn to by Dr. Murray Burton, indicated injuries including a chronic sprain of the lower back, which was resistant to treatment, and chondromalacia of the right knee. Dr. Burton recommended an arthroscopy and possible lateral release procedure as to the knee injury. This was sufficient to raise a question of fact as to whether plaintiff sustained a "significant limitation of use of a body function or system". (Insurance Law § 5102 [d]; Healea v Andriani, 158 A.D.2d 587 [2d Dept 1990]; cf., Zoldas v Louise Cab Corp., 108 A.D.2d, supra, at 384 [doctor's report, even if "competent" evidence, regarded only subjective complaints, failing to note "a limitation of any kind"].)
Concur — Carro, J.P., Ellerin, Kupferman, Kassal and Rubin, JJ.