Evangelista v James
2005 NY Slip Op 08273 [23 AD3d 335]
November 7, 2005
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 18, 2006


Raymond Evangelista et al., Appellants,
v
Bart S. James et al., Respondents.

[*1]

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 13, 2004, which granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff Raymond Evangelista did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the cross motion is denied, and the complaint is reinstated.

The defendants made a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). However, the affirmation of the injured plaintiff's physician, and his narrative reports annexed to and incorporated by reference into his affirmation, were sufficient to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury. Contrary to the Supreme Court's determination, the injured plaintiff's physician, who had treated the injured plaintiff both before and after the accident, adequately discussed his opinion that the alleged injuries were causally related to the subject motor vehicle accident. [*2]

Accordingly, the Supreme Court erred in granting the defendants' cross motion for summary judgment dismissing the complaint. Schmidt, J.P., S. Miller, Mastro, Spolzino and Lunn, JJ., concur.