EVANGELISTA v. JAMES (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 13, 2004, which granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that the plaintiff Raymond Evangelista did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the cross motion is denied, and the complaint is reinstated.

The defendants made a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   However, the affirmation of the injured plaintiff's physician, and his narrative reports annexed to and incorporated by reference into his affirmation, were sufficient to raise a triable issue of fact as to whether the injured plaintiff sustained a serious injury.   Contrary to the Supreme Court's determination, the injured plaintiff's physician, who had treated the injured plaintiff both before and after the accident, adequately discussed his opinion that the alleged injuries were causally related to the subject motor vehicle accident.

Accordingly, the Supreme Court erred in granting the defendants' cross motion for summary judgment dismissing the complaint.