Fernandez v. Shields

223 A.D.2d 666, 637 N.Y.S.2d 185, 1996 N.Y. App. Div. LEXIS 679

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Floyd, J.), dated December 12, 1994, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff had failed to establish that he had sustained a serious injury within the meaning of Insurance Law § 5102; and (2) a judgment of the same court, dated February 1, 1995, which dismissed the complaint.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

Once the defendant submitted evidence in admissible form establishing that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d), the burden shifted to the plaintiff to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact. Since the plaintiff tendered proof of serious injury in inadmissible form, namely an unsworn doctor’s report, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint (see, Grasso v Angerami, 79 NY2d 813; Pagano v Kingsbury, 182 AD2d 268). Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.