| Hammett v Diaz-Frias |
| 2008 NY Slip Op 01865 [49 AD3d 285] |
| March 4, 2008 |
| Appellate Division, First Department |
| Janice Hammett, Appellant, v Fausto C. Diaz-Frias et al.,Respondents, et al., Defendant. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York City (Holly E. Peck of counsel),for Fausto C. Diaz-Frias and Juan Baez, respondents. Richard T. Lau & Associates, Jericho (Joseph G. Gallo of counsel), for Melbourne P. Clarke,respondent.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered November 29, 2006, whichgranted defendants' motion and cross motions for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, the motion and cross motions denied, and thecomplaint reinstated.
The experts for both sides referred in their affirmations to plaintiff's MRI reports that werebefore the court (see Thompson vAbbasi, 15 AD3d 95 [2005]; Brown v Achy, 9 AD3d 30 [2004]; Gonzalez v Vasquez,301 AD2d 438 [2003]), which established the existence of disc bulges and herniations (Tourev Avis Rent A Car Sys., 98 NY2d 345 [2002]).
The affirmed report of Dr. Howell, who first examined plaintiff four days after the incident,connected plaintiff's injuries to the incident and raised a triable issue of fact as to whether theyconstituted a "serious injury" as defined by Insurance Law § 5102 (d). While Howell didnot provide qualitative limitations in his report or specify the tests he conducted (see Burke v Torres, 8 AD3d 118[2004]), his reference to an unsworn report of Dr. Sloan, which did provide such data, shouldhave been considered by the motion court, since "evidence, otherwise excludable at trial, may beconsidered to deny a motion for summary judgment provided that this evidence does not form thesole basis for the court's determination" (Largotta v Recife Realty Co., 254 AD2d 225,225 [1998], quoting Wertheimer v New York Prop. Ins. Underwriting Assn., 85 AD2d540, 541 [1981]).
Even though he did not examine plaintiff until 10 months after the incident, plaintiff's doctorwas able to report that plaintiff's symptoms were caused by the June 2004 accident, that hercondition was permanent in nature, in part an "exacerbation of underlying degenerative jointdisease and prior injuries," and that she sustained permanent consequential limitation in her [*2]cervical and lumbosacral spine. This was sufficient to raise a triableissue of fact as to the permanence of the injury. Concur—Nardelli, J.P., Williams, Sweenyand Catterson, JJ.