The following papers numbered 1 to 10 were read on the motion for summary judgment by defendant alleging that the plaintiff did not meet the serious injury threshold as defined in Insurance Law § 5102(d):

Notice of Motion-Affirmation-Exhibits A-D 1-3

Affirmation in Opposition-Affidavit-Exhibits 1-6 4-6

Upon the foregoing papers it is ORDERED that the motions are disposed of as follows:

This is an action stemming from a motor vehicle accident on February 14, 2007 at the intersection of Dunning Road and Schutt Road in the Town of Wallkill, New York. Plaintiff alleges that while stopped for a red light, defendant's vehicle skidded into plaintiff's vehicle causing a collision. Plaintiff alleges multiple injuries stemming from the alleged accident, including but not limited to a herniated lumbar disc for which he received multiple injections, and a bulging cervical disc.

Defendant moved for summary judgment claiming that plaintiff's injuries failed to meet the no-fault threshold as defined by Insurance Law § 5102(d). Defendant's motion, however, must be denied, since defendant failed to make out a prima facie case.

"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue' (citations omitted). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court (citations omitted)." Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797 (3rd Dept. 1989); See also, Moskowitz v Garlock, 23 AD2d 943, 944 [*2](3rd Dept., 1965).

While summary judgment is an available remedy in some cases, its dire effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Misc. 23, 25 (Sup. Ct., New York County,1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a day in court.'" Wanger v Zeh, 45 Misc 2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 AD2d 729 (3rd Dept.1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bakerian v H.F. Horn, 21 AD2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc 2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc 2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 404 (1957).

The movant has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v M & M Auto & Marine Upholstery, Inc., 256 AD2d 551, 551 (2nd Dept. 1998). It is well established that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 NY2d 338, 341, 357 N.Y.S.2d 478, 480 (1974). Finkelstein v. Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v Wal-Mart Stores, Inc., 288 AD2d 902, 902 (4th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 AD2d 902, 903 (4th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 AD2d 940 (4th Dept. 2000).

The defendant's failure to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers". Winegrad v New York University Medical Center, supra, 64 NY2d at 853; See, also, Miccoli v Kotz, 278 AD2d 460, 461 (2nd Dept. 2000); Karras v County of Westchester, 272 AD2d 377, 378 (2nd Dept. 2000); Fox v Kamal Corporation, 271 AD2d 485 (2nd Dept. 2000); Gstalder v State of New York, 240 AD2d 541, 542 (2nd Dept. 1997); Lamberta v Long Island Railroad, 51 AD2d 730, 730-731 (2nd Dept. 1976); Greenberg v Manlon Realty, Inc., 43 AD2d 968, 969 (2nd Dept. 1974).

In the instant case, defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 (2002); Gaddy v Eyler, 79 NY2d 955 (1992); Walker v Village of Ossining, 18 AD3d 867 (2nd Dept. 2005).

A serious injury is defined in the Insurance Law §5102(d) as:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, [*3]member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Therefore, defendant's motion for summary judgment is denied as said defendant failed to prove his prima facie case. [*4]

The foregoing constitutes the decision and order of this Court.

Dated: July 14, 2010E N T E R

Goshen, New York

__________________________

HON. CATHERINE M. BARTLETT,

A.J.S.C.