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Dumitru A. Orbesteanu and Maria Cornea v. Gregory Malcolm

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


February 14, 2011

DUMITRU A. ORBESTEANU AND MARIA CORNEA
ALSO KNOWN AS MARIA ORBESTEANU,
RESPONDENTS,
v.
GREGORY MALCOLM, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (In-grid Joseph, J.), entered March 23, 2009. The order denied defendant's motion for summary judgment dismissing the complaint.

Orbesteanu v. Malcolm

Decided on February 14, 2011 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

ORDERED that the order is affirmed, without costs.

Plaintiffs commenced this action to recover for personal injuries allegedly sustained by plaintiff Dumitru A. Orbesteanu in a motor vehicle accident, and upon a claim by plaintiff Maria Cornea, also known as Maria Orbesteanu, for loss of consortium. Defendant moved for summary judgment dismissing the complaint on the ground that Mr. Orbesteanu did not suffer a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiffs opposed the motion. The Civil Court denied defendant's motion, and we affirm.

Defendant failed to meet his prima facie burden of showing that Mr. Orbesteanu did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The medical report submitted by defendant's radiologist was inadmissible, since it was unsigned and, thus, not properly subscribed and affirmed by the radiologist (see CPLR 2106; Burgos v Toribio, 33 AD3d 579 [2006]; Matter of American Sec. Ins. Co. v Austin, 110 AD2d 697 [1985]). Furthermore, neither of defendant's examining physicians addressed Mr. Orbesteanu's claim, set forth in his verified bill of particulars, of a herniated disc at the C6-7 level (see Joseph v Hampton, 48 AD3d 638 [2008]; Villavicencio v Mieles, 7 AD3d 517 [2004]). Although the examining physicians' medical reports were properly affirmed, their reports failed to indicate whether they had performed any objective tests with respect to the claimed injury, or even whether they had examined Mr. Orbesteanu's cervical spine.

Since defendant failed to meet his initial burden of establishing a prima facie showing that Mr. Orbesteanu did not sustain a serious injury, it is unnecessary to determine whether plaintiffs' opposition papers were sufficient to raise a triable issue of fact (see Smith v Hartman, 73 AD3d 736 [2010]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Accordingly, the order is affirmed. Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: February 14, 2011

20110214

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