Del v. Eberhart Construction Co.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Goldstein, J.), dated June 26, 1998, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff Mariana Donoso Del did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

The medical reports submitted by the defendants in support of their motion for summary judgment were affirmed under penalty of perjury (see, CPLR 2106) and made out a prima *590facie case that the plaintiff Mariana Donoso Del did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). However, the affirmation of Dr. Jose Acevedo which the plaintiffs submitted in opposition to the motion raised a triable issue of fact (see, CPLR 3212 [b]). S. Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.