Fragale v. Geiger

288 A.D.2d 431, 733 N.Y.S.2d 901, 2001 N.Y. App. Div. LEXIS 11390

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated January 29, 2001, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

Contrary to the finding of the Supreme Court, the reports prepared by the plaintiff’s treating practitioners which the defendant submitted in support of his motion were admissible, although unsworn (see, Pagano v Kingsbury, 182 AD2d 268, 271). Accordingly, the unsworn report dated June 2, 1999, which was prepared by the plaintiff’s physical therapist, may be properly considered in the determination of this motion. Furthermore, that report established, prima facie, that the plaintiff’s injuries were not serious within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955, 956-957). The report states that the plaintiff had noted “a nearly complete alleviation of his symptoms.”

The submissions which the plaintiff offered in opposition to the motion failed to raise a triable issue of fact (see, CPLR 3212 [b]) as to whether he sustained a serious injury (see, Insurance Law § 5102 [d]; Grossman v Wright, 268 AD2d 79). Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.