Chrisomalides v. Ekow

Feb 5, 2002
Versions:291 A.D.2d 202
736 N.Y.S.2d 862
2002 N.Y. App. Div. LEXIS 1407

—Order, Supreme Court, Bronx County (Barry Salman, J.), entered August 28, 2000, which denied appellants’ motion for summary judgment dismissing the complaint upon the ground that such motion was made more than 120 days subsequent to plaintiffs’ filing of their note of issue, unanimously modified, on the law and the facts, to grant appellants’ motion insofar as to dismiss the claims of plaintiffs Andrew and Paressa Kountotsis, and otherwise affirmed, without costs.

Appellants’ motion, plainly meritorious with respect to the claims of the Kountotsis plaintiffs, should have been reviewed on the merits in the interest of judicial economy and granted insofar as it sought dismissal of the Kountotsis claims (see, Brunetti v City of New York, 286 AD2d 253). Our review of the record discloses the absence of any triable issue of fact as to whether plaintiff Andrew Kountotsis sustained “serious injury” within the meaning of Insurance Law § 5102 (d). Kountotsis, in opposing appellants’ motion, did not submit the requisite sworn medical evidence (see, Charlton v Almaraz, 278 AD2d 145), and, moreover, the medical evidence that was submitted by Kountotsis was otherwise inadequate for failing to provide objective substantiation to Kountotsis’s subjective complaints and for failing to set forth a causal connection between Kountotsis’s alleged injuries and the automobile accident in which they are said to have been sustained (see, Graham v Shuttle Bay, 281 AD2d 372).

Plaintiff Christos Chrisomalides, on the other hand, did submit sworn medical evidence sufficient to raise a triable issue as to whether he suffered “serious injur/’ in the subject accident and, accordingly, we affirm the denial of summary judgment with respect to his claims and the derivative claim of his wife (see, Randazzo v Our Lady of Mercy Med. Ctr., 284 AD2d 158; Lesser v Smart Cab Corp., 283 AD2d 273). Concur — Saxe, J.P., Lerner, Buckley, Friedman and Marlow, JJ.