Ayzen v. Melendez

In an action to recover damages for personal injuries, the defendants Ferdinand Melendez and Mr. Mushroom, Inc., appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 20, 2001, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed, with costs. In opposition to the appellants’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff met her burden of demonstrating the existence of a triable issue of fact with respect to whether she sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Stark v Amadio, 239 AD2d 569; Rut v Grigonis, 214 AD2d 721). While the affirmation of the plaintiff’s treating physician was based upon, inter alia, the results of unsworn magnetic resonance imaging reports of the plaintiff’s cervical and lumbosacral spines and left shoulder, these results were referred to by the appellants’ examining neurologist and therefore, were properly before the court (see Perry v Pagano, 267 AD2d 290; Raso v Statewide Auto Auction, 262 AD2d 387; Pietrocola v Battibulli, 238 AD2d 864, 866 n). Altman, J.P., S. Miller, McGinity, Schmidt and Rivera, JJ., concur.