Opinion
2002-1515 Q C.
Decided December 22, 2003.
Appeal by plaintiffs from an order of the Civil Court, Queens County (J. Golia, J.), entered August 22, 2002, granting defendant Sterling's motion for summary judgment dismissing the complaint as to plaintiff Valerio on the ground that she failed to satisfy the threshold requirement of sustaining a serious physical injury pursuant to Insurance Law § 5102 (d) and implicitly denying their cross motion for summary judgment.
Order reversed without costs, defendant Sterling's motion for summary judgment dismissing the complaint as to plaintiff Valerio denied and plaintiffs' cross motion for summary judgment on the issue of liability granted.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
Plaintiffs commenced this action to recover damages for physical injuries sustained by plaintiff Valerio and property damage sustained to an automobile owned by plaintiff Diaz during an accident between said vehicle operated by Valerio, and one owned by defendant Sterling and operated by defendant Cardena. Thereafter, Sterling moved for summary judgment as against Valerio and plaintiffs cross-moved for summary judgment on the issue of liability.
A review of the record indicates that Sterling established his prima facie entitlement to summary judgment as against Valerio on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), by submitting the affirmed medical reports of an orthopedist and neurologist, based upon recent examinations of Valerio ( see Gaddy v. Eyler, 79 NY2d 955). The burden then shifted to plaintiffs to produce evidentiary proof in admissible form to raise a triable issue of fact (see Licari v. Elliot, 57 NY2d 230). We find that the affirmed 1999 medical report of Dr. Brosgol, raises triable issues of fact as to the permanency of Valerio's injuries (see Rut v. Grigonis, 214 AD2d 721) and Dr. Bernshteyn's affirmed 1999 "Initial Narrative Report" and "Final Narrative Report" raise triable issues of fact regarding Valerio's loss of range of motion (see Toure v. Avis Rent A Car Sys., 98 NY2d 345).
We note that it is uncontroverted that the notice of trial was filed on January 11, 2002, from which date the parties had 120 days in which to make motions for summary judgment (see CPLR 3212). Although plaintiffs' cross motion for summary judgment was served more than 120 days after the filing of the notice of trial, it should be considered since it was made while defendant's timely motion for summary judgment was still pending ( see James v. Jamie Towers Hous. Co., 294 AD2d 268, 272; Rosa v. Macy Co., 272 AD2d 87). The motion papers establish that defendants' vehicle collided into the rear of plaintiffs' vehicle, raising the rebuttable inference of negligence on the part of the operator of defendants' vehicle, thereby establishing a prima facie case against defendants (see Trip v. GELCO Corp., 260 AD2d 925). The police report containing defendants' self-serving statement regarding the accident is not in admissible form (see Wolf v. We Transp., 274 AD2d 514) and is insufficient to defeat plaintiffs' prima facie showing of entitlement to summary judgment (see Pitchon v. City of New York, 243 AD2d 548; see also Itingen v. Weinstein, 260 AD2d 440; Lopez v. Minot, 258 AD2d 564). The moving defendant presented no legally sufficient evidence indicating that Valerio negligently operated her vehicle.
Accordingly, we find that the court below should have granted plaintiffs' cross motion seeking summary judgment on the issue of liability, while noting that this determination has no bearing on the issue of whether plaintiff Valerio sustained a "serious injury" ( Zecca v. Riccardelli, 293 AD2d 31).
Pesce, P.J., and Aronin, J., concur.
Patterson, J., dissents in part in a separate memorandum.
I would leave undisturbed so much of the order of the court below as granted defendant Sterling's motion for summary judgment as against plaintiff Valerio. As the majority correctly concludes, defendant Sterling's submissions establish, prima facie, that plaintiff Valerio's injuries were not serious within the meaning of Insurance Law § 5102 (d). However, in my opinion, plaintiff Valerio failed to refute defendant's prima facie showing.
To rebut the prima facie showing, plaintiff was required to submit, in admissible form, objective proof of serious injury ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). Such proof must set forth objective medical findings based upon a recent examination of the plaintiff ( see Castaldo v. Migliore, 291 AD2d 526). In this case, plaintiff Valerio has not satisfied this burden.
Here, plaintiff Valerio submits the affirmations and medical reports of Drs. Khodadadi, Bernshteyn and Brosgol. Only one of those reports is contemporaneous with the instant motion. However, that report cannot be considered because it postdates the accompanying affirmation. The fact that the remaining reports predate the instant motions by almost three years cannot be overlooked. Moreover, neither Dr. Bemshteyn's nor Dr. Brosgol's affirmed 1999 medical reports reflect the nature and extent of any treatment in the three-year period following the accident. Because plaintiff Valerio provides no proof of her condition or treatment during this three-year period, defendant Sterling's motion for summary judgment should have been granted ( see Ubri v. Monserrate, — AD2d — [2nd Dept, Nov. 10, 2003]; Mejia v. Thom, 280 AD2d 528 [2nd Dept 2001]; Goldin v. Lee, 275 AD2d 341, 342 [2nd Dept 2000]).