Opinion
2015–05340 Index No. 2623/13
11-07-2018
Jaime RAMIREZ, Appellant, v. Modobbir MIAH, et al., Respondents.
Frekhtman & Associates, Brooklyn, N.Y. (Eileen Kaplan and Alex Rybakov, New York, of counsel), for appellant. Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for respondents.
Frekhtman & Associates, Brooklyn, N.Y. (Eileen Kaplan and Alex Rybakov, New York, of counsel), for appellant.
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for respondents.
RUTH C. BALKIN, J.P., SANDRA L. SGROI, HECTOR D. LASALLE, BETSY BARROS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), dated January 13, 2015. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v. Yshua, 59 A.D3d 614, 874 N.Y.S.2d 180 ).
In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether he sustained serious injuries to the cervical and lumbar regions of his spine (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ). We disagree with the Supreme Court's determination that the electronic signature on the plaintiff's physician's affirmed report was insufficient to render the report admissible pursuant to State Technology Law §§ 302(3) and 304(2) (see Forcelli v. Gelco Corp., 109 A.D.3d 244, 250–251, 972 N.Y.S.2d 570 ; Naldi v. Grunberg, 80 A.D.3d 1, 12–13, 908 N.Y.S.2d 639 ; cf. Vista Surgical Supplies, Inc. v. Travelers Ins. Co., 50 A.D.3d 778, 860 N.Y.S.2d 532 ).
Thus, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
BALKIN, J.P., SGROI, LASALLE and BARROS, JJ., concur.