Defendant George Machavarian moves for leave to renew and reargue the prior decision of this Court, dated September 6, 2006, which denied his motion for summary judgment on the ground it was not timely filed. The motion for leave to reargue is granted, and upon reconsideration, the Court finds the motion to be timely. Accordingly, the Court will now consider the merits of the original motion.

This matter arises out of an accident which occurred on February 13, 2005 at the intersection of Richmond Road and Barton Avenue in Staten Island, New York. Defendant moved for summary judgment dismissing the complaint on the ground that the injuries sustained by the infant plaintiff, Charles Santoro (hereinafter "plaintiff"), failed to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d).

In support of the motion for summary judgment, defendant has submitted the October 9, 2006 sworn affirmation of Dr. Gregory Montalbano, a Board Certified orthopedic surgeon, who examined plaintiff and reviewed the MRI and x-ray films taken subsequent to the accident. Dr. Montalbano found no objective evidence of an ongoing disability and found no decreased range of motion with regard to plaintiff's cervical, lumbar or thoracic spine, or as to his left knee and wrist (see Defendant's "C"). Also submitted is the affirmed report of Dr. Lourdes Esteban, a Board Certified neurologist, who found no objective evidence of any ongoing neurological disability in plaintiff (id.). Additionally, defendant has annexed the affirmed report of Dr. Robert Tantleff, a Board Certified radiologist, who reviewed plaintiff's MRI films, and concluded that his left knee showed "...no evidence of acute or traumatic meniscal tear", nor any causal relationship to the traumatic event at issue (id.).

In the opinion of this Court, these affirmations detailing the objective tests performed upon plaintiff and their results, are sufficient to satisfy defendant's burden of establishing a prima facie case that plaintiff did not suffer a "serious injury" as a result of the subject accident (see Nagbe v Minigreen Hacking Group, 22 AD3d 326). Consequently, the burden has shifted to [*2]plaintiff to present sufficient admissible evidence to raise a triable issue of fact that he sustained a "serious injury" (see Gaddy v Eyler, 79 NY2d 955).

In opposition to defendant's motion for summary judgment, the plaintiff submitted his affidavit, hospital records from Staten Island University Hospital, medical reports from Dr. Walter Pizzi, medical records from Richmond County Chiropractic P.C., Fawzy W. Salama, M.D., Robert W. Verde, M.D., MRI and x-ray reports from Bromer Medical, P.C., plaintiff's examination before trial, and the affirmation of Robert Scott Schepp, M.D. and Robert W. Verde, M.D.

Robert Scott Schepp, M.D., a Board Certified neuroradiologist and Board Certified radiologist, affirmed he read plaintiff's MRI of his left knee which was taken approximately two (2) weeks post accident and found a partial meniscal tear involving the posterior horn of the medial meniscus and suprapatella effusion. Robert W. Verde, M.D., a licensed orthopedic surgeon, affirmed he first examined plaintiff on March 18, 2005, six (6) weeks post accident. His examination revealed mild medial joint line tenderness and a trace positive McMurray's sign. His initial diagnosis was partial medial meniscus tear of the left knee as per the MRI. Dr. Verde's last examination of plaintiff was performed on December 18, 2006. His examination revealed crepitus on flexion/extension with a mild join line discomfort and a positive McMurray's sign. His opinion is that no further objective or subjective improvement is expected. Dr. Verde concluded plaintiff's partial meniscal tear involving the posterior horn of the medial meniscus was causally related to the accident of February 3, 2005.

The hospital records and medical reports of plaintiff's doctors Walter Pizzi and Fawzi W. Salama are without probative value, as they are neither sworn, affirmed nor certified (see Laguerre v Chavarria,AD3d ___ 837 NYS2d 716 [2nd Dept 2007]).

Accordingly, this Court finds the plaintiff has met his burden of proof raising an issue of fact whether he sustained a serious injury as defined in Insurance Law §5102 (d).

Accordingly, it is hereby

ORDERED, that the motion for reargument is granted and, upon reargument, the motion for summary judgment of defendant Gurgen Machavarian is denied.

This shall constitute the decision and order of the Court.

S/ Philip G. Minardo

J. S. C.