DIAZ v. NUNEZ

In moving for summary judgment on the ground that plaintiff did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), defendants submitted the affirmed report of only one medical expert, a radiologist. The sole basis for the expert's report was her review of x-rays created at an unknown location on June 18, 2000, a date four months prior to the subject automobile accident. The expert's report does not set forth the basis, if any, for her understanding that the x-rays she examined depicted plaintiff, nor is there any other evidence in the record to indicate that any x-rays of plaintiff were made in June 2000. Since defendants' motion papers thus failed to meet their burden to establish a prima facie case that plaintiff did not sustain a serious injury, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers ( see e.g. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.