Deliah Brathwaite v New York Central Mutual Fire Insurance Company

Brathwaite v New York Cent. Mut. Fire Ins. Co. 2004 NY Slip Op 09252 [13 AD3d 405] December 13, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 23, 2005

Deliah Brathwaite, Appellant,
v
New York Central Mutual Fire Insurance Company, Respondent.

—[*1]In an action to recover damages for breach of the underinsured motorists provision of an insurance policy, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruditzky, J.), dated May 8, 2003, which granted that branch of the defendant's motion which was for summary judgment dismissing the complaint 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 reversed, on the law, with costs, that branch of the motion which was for summary judgment is denied, and the complaint is reinstated.

The 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) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The report of the defendant's examining physician was unsworn and, therefore, inadmissible (see Pagano v Kingsbury, 182 AD2d 268, 270 [1992]; cf. Gleason v Huber, 188 AD2d 581, 582 [1992]), and the report of the defendant's radiologist concerned only one aspect of the plaintiff's alleged injuries.

In view of the defendant's failure to meet its initial burden of establishing a prima [*2]facie case that the plaintiff did not sustain a serious injury, it is unnecessary to consider whether the plaintiff's papers in opposition to the defendant's motion were sufficient to raise a triable issue of fact (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]; Mariaca-Olmos v Mizrhy, 226 AD2d 437 [1996]). Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.