LAZU v. INTEGRAL TRUCK LEASING

Although the motion court erred in concluding that defendants' physicians' affidavits, averring that plaintiff had not by reason of the complained of automobile accident sustained serious injury within the meaning of Insurance Law § 5102(d), were insufficient to sustain defendants' initial burden as summary judgment movants (see, Grossman v. Wright, 268 A.D.2d 79, 83-84), defendants' motion was nonetheless properly denied in view of the responding affidavit of plaintiff's treating chiropractor, based on his examinations of plaintiff and the purportedly objective diagnostic tests performed by him on plaintiff, stating that plaintiff, as a result of the accident, suffers from a permanent partial disability. The chiropractor's sworn affidavit, which incorporated by reference two prior unsworn reports, is sufficient to raise a triable issue of fact as to whether plaintiff sustained a serious physical injury as defined by Insurance Law § 5102(d) (see, Stark v. Amadio, 239 A.D.2d 569).

We have considered defendants' remaining contention and find it to be unavailing.

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