Chan v. Garcia

24 A.D.3d 197, 806 N.Y.S.2d 23

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2005
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered October 4, 2004, which granted the motions and cross motions by defendants and third-party defendant for summary judgment dismissing the complaint, third-party complaint, and all cross claims asserted against the moving parties, unanimously affirmed, without costs.

Although the report of plaintiffs’ physician was adequate to show the existence of questions of fact concerning whether a serious injury had occurred, it failed to establish that there was a connection between the injured plaintiff’s current medical condition and the accident. Plaintiffs did not submit as an exhibit the report of the MRI on which their physician’s report was based, and the expert did not explain how he came to the conclusion that the torn rotator cuff resulted from the accident, or how he was able to exclude the possibility that the tear resulted from another source, such as the injured plaintiffs occupational duties (see Pommells v Perez, 4 NY3d 566, 573-574 [2005]).

The court did not err in entertaining the motions even though the pleadings of nonmoving parties were not attached as exhibits. The record was sufficient to determine whether the moving parties were entitled to the relief sought (see e.g. Van Epps v Town of Verona, 305 AD2d 1035 [2003]). Concur—Tom, J.P., Friedman, Nardelli, Sweeny and Malone, JJ.