RICE v. Edward M. Walker, et al., Defendants. (2002)

Order, Supreme Court, New York County (Joan Madden, J.), entered on or about June 11, 2002, which denied defendants-appellants' motion for summary judgment dismissing the complaint for lack of a serious injury within the meaning of Insurance Law § 5102(d), unanimously affirmed, without costs.

Whether plaintiff's decedent suffered a serious injury is a factual issue raised by the decedent's treating physician's affirmation.   The affirmation correlates the decedent's claimed inability to engage in her customary daily activities five-and-a-half months after the accident to range of motion limitations found on his own physical examination and upon MRI reports describing bulging discs at C2-C3 though C6-C7 with cord impingement and central spinal stenosis appreciated as described in MRI reports (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 351-353, 353-355, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   Because of the evidence adduced by the first-hand observations of plaintiff's treating physician, it does not avail defendants that the MRI reports are unsworn (see id. at 358, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Ayzen v. Melendez, 299 A.D.2d 381, 749 N.Y.S.2d 445).