Sabella v. McKain

239 A.D.2d 333, 657 N.Y.S.2d 1012, 1997 N.Y. App. Div. LEXIS 4593

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Kings County (Rappaport, J.), dated April 18, 1996, as denied her motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

In this personal injury action arising out of a two-vehicle accident, the defendant moved for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain serious injury as defined by Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955). In doing so, she relied upon unsworn reports prepared by the injured plaintiff’s treating physicians and chiropractor. The defendant could rely solely upon such reports to establish a prima facie case that the injured plaintiff did not sustain serious injury, and thus, that she was entitled to summary judgment (see, Pagano v Kings-bury, 182 AD2d 268, 271). However, in the instant case, one such report, by Dr. Eugene A. Ferrara, stated that the injured plaintiff suffered from specifically quantified, permanent decreases in rotation, extension, and flexion in both his cervical and lumbar spine regions. Therefore, the defendant failed to establish a prima facie case that the injured plaintiff’s injuries were not serious (see, Mendola v Demetres, 212 AD2d 515). Miller, J. P., Thompson, Joy and Luciano, JJ., concur.