AGUILAR v. WATER WORKS INC (2002)

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered September 21, 2001, which, to the extent appealed from, denied defendants' cross motion for summary judgment, unanimously affirmed, without costs.

Defendants' cross motion for summary judgment, seeking dismissal of the complaint upon the ground that plaintiff had not sustained “serious injury” within the meaning of Insurance Law § 5102(d), was properly denied.   The affirmation of plaintiff's physician, based on his own examination of plaintiff, the straight leg raising test, the EMG/NCV test performed by him, as well as other reports, including MRIs and a CT scan, upon which he relied, concluded that plaintiff continued to suffer, two years after the accident, from causally related herniated discs and other injuries resulting in permanent disability and limitations of motion of 25% to 40% in plaintiff's cervical and lumbosacral spine (see Verderosa v. Simonelli, 260 A.D.2d 293, 689 N.Y.S.2d 45;  Adetunji v. U-Haul Co., 250 A.D.2d 483, 672 N.Y.S.2d 869;  DiLeo v. Blumberg, 250 A.D.2d 364, 672 N.Y.S.2d 319;  Pagan v. Gondola Cab Corp., 235 A.D.2d 251, 652 N.Y.S.2d 277).   Although the MRIs, CT scan and certain other reports were not sworn, defendants never raised this issue prior to this appeal and we decline to consider this argument in light of the fact that, had the issue been raised previously, plaintiff may have been able to correct the defect (see DiLeo v. Blumberg, 250 A.D.2d at 365, 672 N.Y.S.2d 319).