Jose Diaz v Victor Nunez

Diaz v Nunez 2004 NY Slip Op 02284 [5 AD3d 302] March 25, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

Jose Diaz, Appellant,
v
Victor Nunez et al., Respondents.

—

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 13, 2003, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In moving for summary judgment on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d), defendants submitted the affirmed report of only one medical expert, a radiologist. The sole basis for the expert's report was her review of x-rays created at an unknown location on June 18, 2000, a date four months prior to the subject automobile accident. The expert's report does not set forth the basis, if any, for her understanding that the x-rays she examined depicted plaintiff, nor is there any other evidence in the record to indicate that any x-rays of plaintiff were made in June 2000. Since defendants' motion papers thus failed to meet their burden to establish a prima facie case that plaintiff did not sustain a serious injury, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Concur—Tom, J.P., Mazzarelli, Sullivan, Ellerin and Friedman, JJ.