Opinion
5671
February 5, 2002.
Order, Supreme Court, Bronx County (Barry Salman, J.), entered August 28, 2000, which denied appellants' motion for summary judgment dismissing the complaint upon the ground that such motion was made more than 120 days subsequent to plaintiffs' filing of their note of issue, unanimously modified, on the law and the facts, to grant appellants' motion insofar as to dismiss the claims of plaintiffs Andrew and Paressa Kountotsis, and otherwise affirmed, without costs.
ELIZABETH MONTESANO, for plaintiffs-respondents.
MICHAEL I. JOSEPHS, for defendants-appellants.
Before: Saxe, J.P., Lerner, Buckley, Friedman, Marlow, JJ.
Appellants' motion, plainly meritorious with respect to the claims of the Kountotsis plaintiffs, should have been reviewed on the merits in the interest of judicial economy and granted insofar as it sought dismissal of the Kountotsis claims (see, Brunetti v. City of New York, 286 A.D.2d 253, 728 N.Y.S.2d 665). Our review of the record discloses the absence of any triable issue of fact as to whether plaintiff Andrew Kountotsis sustained "serious injury" within the meaning of Insurance Law § 5102(d). Kountotsis, in opposing appellants' motion, did not submit the requisite sworn medical evidence (see, Charlton v. Almaraz, 278 A.D.2d 145), and, moreover, the medical evidence that was submitted by Kountotsis was otherwise inadequate for failing to provide objective substantiation to Kountotsis's subjective complaints and for failing to set forth a causal connection between Kountotsis's alleged injuries and the automobile accident in which they are said to have been sustained (see, Graham v. Shuttle Bay, Inc., 281 A.D.2d 372).
Plaintiff Christos Chrisomalides, on the other hand, did submit sworn medical evidence sufficient to raise a triable issue as to whether he suffered "serious injury" in the subject accident and, accordingly, we affirm the denial of summary judgment with respect to his claims and the derivative claim of his wife (see, Randazzo v. Our Lady of Mercy Med. Ctr., 284 A.D.2d 158; Lesser v. Smart Cab Corp., 283 A.D.2d 273).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.