Opinion
570563/03.
Decided June 4, 2004.
Defendants appeal from an order of the Civil Court, Bronx County, entered July 6, 2001 (Wilma Guzman, J.), denying their motion for summary judgment dismissing the personal injury complaint on the ground that plaintiff did not sustain a "serious injury" (Insurance Law § 5102[d]).
Order entered July 6, 2001 (Wilma Guzman, J.) affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Defendants permissibly used unsworn reports of plaintiff's doctors, disclosed to defendants by plaintiff, in their effort to demonstrate that plaintiff did not suffer serious injury (see Newton v. Drayton, 305 AD2d 303; McNair v. Ofori, 198 AD2d 47). However, those reports set forth diagnoses of, inter alia, post-concussion syndrome and shoulder abnormalities (see e.g., Jackson v. Mungo One, ___ AD2d ___, 774 NYS2d 327). The reports also indicated that further testing or treatment was required before permanence could be established and that plaintiff's prognosis was "guarded" (see Pisasale v. Buckhorn Carriers, 249 AD2d 157). It therefore cannot be said that defendants met their burden of demonstrating as a matter of law that plaintiff did not sustain serious injury. This required denial of the motion without regard to the quality of plaintiff's opposition (id.; see Lichtman v. Heit, 300 AD2d 242; Cosovic v. Term Leasing, 234 AD2d 79).
This constitutes the decision and order of the court.