DECISION ORDER
ORDERED that the orders are affirmed, with one bill of costs.
On May 10, 1994, the plaintiff Jeffrey Raso was attending an auction conducted by the appellant at the premises of the defendant Statewide Auto Auction, Inc. (hereinafter Statewide). One of the vehicles to be auctioned stalled. As the vehicle was being pushed to the auction block, it rolled over Raso's left foot.
Since the appellant was conducting the auction, and, pursuant to a contract with Statewide, had "the exclusive right to determine the manner of and procedure" of the auction, there is an issue of fact as to whether the appellant was at fault in the happening of the accident.
With respect to whether Raso sustained a serious injury within the meaning of Insurance Law § 5102(d), we note that the unsworn report of his treating physician was relied upon by the appellant. and therefore was properly before the court ( see, Pietrocola v. Battibulli, 238 A.D.2d 864). In the report, the treating physician objectively quantified restrictions in the range of motion of Raso's foot. Thus, the appellant failed to establish its entitlement to judgment as a matter of law ( see, Tsiamis v. Liu, 259 A.D.2d 746 [2d Dept., Mar. 29, 1999]; Lombardi v. Columbo, 259 A.D.2d 524 [2d Dept., Mar. 8, 1999]; Ventura v. Moritz, 255 A.D.2d 506 [2d Dept., Nov. 23, 1998]).
Accordingly, the motions for summary judgment were properly denied.