Schifano v. Golden

268 A.D.2d 335, 701 N.Y.S.2d 406, 2000 N.Y. App. Div. LEXIS 499

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered May 6, 1998, granting defendant Helen Golden’s motion and defendants Louis Pristero and “Jane” Pristero’s cross motion for summary judgment dismissing plaintiffs’ complaint on the grounds that plaintiff Leah Schifano failed to meet the serious injury threshold of Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, the motion and cross motion denied and the complaint reinstated.

In our view, plaintiff presented sufficient objective evidence to demonstrate the existence of a triable issue of fact as to whether she sustained a serious injury within the meaning of section 5102 (d) of the Insurance Law. We agree with the IAS Court that the unsworn MRI report of Dr. DeNise does not constitute evidentiary proof in admissible form sufficient to defeat the motions (Rodriguez v Goldstein, 182 AD2d 396; Braham v U Haul Co., 195 AD2d 277). However, Dr. Greenbaum’s affirmation, standing alone, serves as a sufficient basis for defeating the motions. The affirmation sets forth specific objective data concerning his examination, testing and clinical findings. His opinion is based upon more than plaintiff’s subjective complaints, and summary judgment should have been denied (Verderosa v Simonelli, 260 AD2d 293; Vargas v New York City Tr. Auth., 254 AD2d 175). Concur—Lerner, J. P., Saxe, Buckley and Friedman, JJ.