Charlton v. Almaraz

• Decision Date: 21 December 2000
• Citation: 278 A.D.2d 145,718 N.Y.S.2d 52
• Parties: (A.D. 1 Dept. 2000) Malcolm Charlton, Plaintiff-Respondent, v. Luis E. Almaraz, et al., Defendants-Appellants, and Alan Ritta, et al., Defendants. 2355 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 52

718 N.Y.S.2d 52 (A.D. 1 Dept. 2000)

Malcolm Charlton, Plaintiff-Respondent, v. Luis E. Almaraz, et al., Defendants-Appellants, and Alan Ritta, et al., Defendants.

2355

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

December 21, 2000

Sharon Weintrub Dashow, for plaintiff-respondent.

Michael I. Josephs, for defendants-appellants.

Rosenberger, J.P., Wallach, Saxe, Buckley, Friedman, JJ.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered May 7, 1999, which denied the Almaraz defendants' motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the compliant against them.

As a passenger involved in serial rear-end automobile collisions, plaintiff commenced this action seeking damages for injuries consisting of cervical and lumbar strain and sprain. The Almaraz defendants moved for summary judgment based upon the sworn report of an examining physician which concluded that plaintiff was not disabled. Defendants argued that plaintiff had not suffered a "serious" injury as required by Insurance Law 512 (d). Having satisfied their burden of proof on the motion, it was incumbent on plaintiff to submit proof in admissible form demonstrating that there are triable issues of fact regarding whether he sustained a serious injury (Grasso v. Angerami, 79 N.Y.2d 813; McLoyrd v. Pennypacker, 178 A.D.2d 227, lv. denied 79 N.Y.2d 754). Plaintiff submitted several unsworn medical reports but those are insufficient to satisfy plaintiff's burden of proof since they are not in admissible form. (Merisca v. Alford, 243 A.D.2d 613; Friedman v. U-Haul Truck Rental, 216 A.D.2d 266). Plaintiff's and Dr. Marone's affidavits are also insufficient since each is based on plaintiff's subjective statements of pain (Soto v. Fogg, 255 A.D.2d 502; Merisca v. Alford, 243 A.D.2d 613). While plaintiff has submitted evidence that he has a mild lumbar strain and sprain, there is simply insufficient evidence to satisfy the statutory requirement of a compensable serious injury (Rodriguez v. Schickler, 229 A.D.2d 326; Lowe v. Bennett, 122 A.D.2d 728, affd. 69 N.Y.2d 700).