MINORI v. HERNANDEZ TRUCKING CO INC (1997)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Kitzes, J.), dated May 31, 1996, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff brought this negligence action to recover damages for personal injuries she allegedly sustained when the car in which she was a passenger was struck from behind by a truck owned by the defendant Hernandez Trucking Co., Inc., and operated by the defendant Jose Fuentes.   The defendants moved for summary judgment on the ground that the plaintiff did not suffer serious injury as defined by Insurance Law § 5102(d).

The court properly denied the defendants' motion, since they failed to establish that one of the injuries allegedly suffered by the plaintiff, a second degree tear of the left anterior talofibular ligament of the ankle, did not constitute serious injury.   The affirmed report of the neurologist who examined the plaintiff on behalf of the defendants was without evidentiary value with respect to the plaintiff's alleged ankle injury.   The report stated that there was “no problem” with the ankle, but there was no basis given for this conclusion (see, Lopez v. Senatore, 65 N.Y.2d 1017, 1019, 494 N.Y.S.2d 101, 484 N.E.2d 130;  Attanasio v. Lashley, 223 A.D.2d 614, 615, 636 N.Y.S.2d 834).   Moreover, the report failed to indicate whether any objective tests were performed with respect to the ankle injury, or even whether the physician examined her ankle (see, Donnelly v. Kurlander, 220 A.D.2d 716, 717, 633 N.Y.S.2d 342;  Jean-Mehu v. Berbec, 215 A.D.2d 440, 626 N.Y.S.2d 274).

MEMORANDUM BY THE COURT.