Choudhury v. Chen

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about August 18, 1999, which denied defendants’ motion for summary judgment dismissing the complaint upon the ground that plaintiff Nadira Choudhury had not sustained “serious injury” within the meaning of Insurance Law § 5102 (d), unanimously affirmed, without costs. The unsworn medical report prepared by defendants’ medical expert and submitted in support of their summary judgment motion was insufficient to satisfy defendants’ initial burden as summary judgment movants to make a prima facie showing that plaintiff had not sustained “serious injury” within the meaning of Insurance Law § 5102 (d) (see, DeAngelo v Fidel Corp. Servs., 171 AD2d 588, 589). In any event, defendants’ claim that the diagnoses of plaintiff Nadira Choudhury’s examining physician are without probative value because they are not supported by objective tests is unavailing because his findings were based on his own physical examination of plaintiff (see, Grossman v Wright, 268 AD2d 79). Defendants’ remaining contentions raise issues of credibility appropriately left for resolution at trial (see, Vargas v New York City Tr. Auth., 254 AD2d 175, 176). Concur — Nardelli, J. P., Ellerin, Wallach, Saxe and Buckley, JJ.