Brathwaite v. New York Central Mutual Fire Insurance

13 A.D.3d 405, 785 N.Y.S.2d 707, 2004 N.Y. App. Div. LEXIS 15239

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2004
• Status: Published

Opinion

In an action to recover damages for breach of the underinsured motorists provision of an insurance policy, the plaintiff appeals from an order of the Supreme Court, Bangs County (Ruditzky, J.), dated May 8, 2003, which granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious iniury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, that branch of the motion which was for summary judgment is denied, and the complaint is reinstated.

The defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The report of the defendant’s examining physician was unsworn and, therefore, inadmissible (see Pagano v Kingsbury, 182 AD2d 268, 270 [1992]; cf. Gleason v Huber, 188 AD2d 581, 582 [1992]), and the report of the defendant’s radiologist concerned only one aspect of the plaintiffs alleged injuries.

In view of the defendant’s failure to meet its initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury, it is unnecessary to consider whether the plaintiffs papers in opposition to the defendant’s motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.