Summary
affirming denial of summary judgment for defendant where examining physician affirmed that, two years after the subject accident, plaintiff's neck and back pain correlated with quantified range-of-motion limitations found during physical examination and bulging and herniated discs described in MRI reports, and opined that plaintiff's symptoms were permanent
Summary of this case from Rivera v. United StatesOpinion
2693
January 21, 2003.
Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered April 29, 2002, which denied defendant's motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102(d), and granted plaintiff's cross motion for summary judgment on the issue of liability to the extent of awarding plaintiff summary judgment on causation, unanimously modified, on the law, to grant the cross motion to include fault and to remand for further proceedings including trial of the issue of serious injury, and otherwise affirmed, without costs.
Lisa B. Bird, for plaintiff-respondent.
Richard E. Lerner, for defendant-appellant.
Saxe, J.P., Sullivan, Ellerin, Gonzalez, JJ.
In an action for personal injuries sustained when plaintiff's car was rear-ended by defendant's car, an issue of fact as to whether plaintiff suffered a serious injury is raised by his examining physician's affirmation. Such affirmation correlates plaintiff's neck and back pain two years after the accident to, inter alia, quantified range of motion limitations found on physical examination and bulging and herniated discs described in MRI reports, and opines that plaintiff's symptoms are permanent (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 351-353, 353-355). It does not avail defendant that the MRI reports are unsworn (cf. id. at 358; Ayzan v. Melendez, 299 A.D.2d 381, 749 N.Y.S.2d 445). Concerning plaintiff's cross motion, defendant does not adduce any evidence to counter plaintiff's showing that defendant was solely responsible for rear-ending plaintiff's vehicle and summary judgment as to the issue of fault was appropriate. Since issues of fact as to serious injury rendered summary judgment as to defendant's ultimate liability inappropriate (cf. Maldonado v. DePalo, 277 A.D.2d 21), the motion court, in a meticulous effort to avoid encompassing a finding of serious injury in its grant of partial summary judgment on the cross motion, characterized the grant as relating to causation only. Inasmuch as the motion court found an absence of any triable issue as to "defendant's negligence in this rear-end collision," we modify to award plaintiff summary judgment as to fault.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.