Roman v. O'Brien

305 A.D.2d 337, 759 N.Y.S.2d 655, 2003 N.Y. App. Div. LEXIS 6118

Opinion

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered on or about September 4, 2002, which, insofar as appealed from, denied defendants-appellants’ motion for summary judgment dismissing the complaint for lack of a serious injury as defined by Insurance Law § 5102 (d), unanimously affirmed, without costs.

Whether, as defendants contend, plaintiffs injuries existed prior to the accident is an issue of fact raised by the affirmation of his treating physician, which, inter alia, opines on the basis of pre-accident medical records that plaintiff’s neck and back injuries were not preexisting and that a preexisting knee injury was aggravated by the accident. It does not avail defendants that the physicians’s affirmation refers to various unverified reports of other physicians (see Gonzalez v Vasquez, 301 AD2d 438 [2003]). Concur — Nardelli, J.P., Saxe, Sullivan, Wallach and Williams, JJ.