DOWLING v. MOSEY (2006)

 Plaintiff appeals from an order granting defendant's motion for summary judgment on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102(d).  We reverse.   In opposition to the motion, plaintiff submitted, inter alia, a December 28, 1999 report of her treating orthopedist that was affirmed under penalty of perjury but contained only a stamped facsimile signature, as well as the notation that it had been “dictated ․ but not read.”   Contrary to plaintiff's contention on appeal, that report is not in admissible form (see CPLR 2106;  Park Health Ctr. v. Countrywide Ins. Co., 1 Misc.3d 906(A), 2003 N.Y. Slip Op. 51529(U), *3, 2003 WL 23112010;  Sandymark Realty Corp. v. Creswell, 67 Misc.2d 630, 631, 324 N.Y.S.2d 504;  Macri v. St. Agnes Cemetery, 44 Misc.2d 702, 703-704, 255 N.Y.S.2d 278).   We nevertheless conclude that defendant waived any objection to the deficient affirmation by failing to raise the issue of its admissibility (see Akamnonu v. Rodriguez, 12 A.D.3d 187, 784 N.Y.S.2d 516;  Shinn v. Catanzaro, 1 A.D.3d 195, 198, 767 N.Y.S.2d 88;  Scudera v. Mahbubur, 299 A.D.2d 535, 750 N.Y.S.2d 644;  Sam v. Town of Rotterdam, 248 A.D.2d 850, 851, 670 N.Y.S.2d 62, lv. denied 92 N.Y.2d 804, 677 N.Y.S.2d 779, 700 N.E.2d 318;  see also Bax v. Allstate Health Care, Inc., 26 A.D.3d 861, 863, 809 N.Y.S.2d 378).   We further conclude that the orthopedist's report, together with plaintiff's deposition testimony, raises triable issues of fact whether plaintiff sustained a fracture as well as a medically determined injury that prevented her from performing substantially all of her usual and customary daily activities for at least 90 days during the 180 days immediately following the accident (see Insurance Law § 5102[d] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

MEMORANDUM: