Grafmuller v. Malek (297 A.D.2d 703, 2002)

The Supreme Court improperly determined that the plaintiffs proof was not in admissible form, and not based upon a recent examination.

In opposition to the defendant’s prima facie showing of entitlement to judgment as a matter or law, the plaintiff submitted sworn statements from chiropractors and a physician demonstrating the existence of factual issues with respect to whether she sustained a “serious injury” within the meaning of Insurance Law § 5102 (d) (see Stark v Amadio, 239 AD2d 569). One of those chiropractors was still treating the plaintiff at the time the motion for summary judgment was made, “encompassing approximately 100 visits for testing and treatment.”

Accordingly, summary judgment should have been denied. Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.