Fisher v. Ciarfella ( 2002 )

—Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered December 19, 2001, which granted plaintiffs motion seeking partial summary judgment on the issues of negligence and serious injury.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is denied.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when a vehicle driven by Nancy L. Ciarfella (defendant) struck her as she was crossing the street on foot. Supreme Court erred in granting plaintiffs motion seeking partial summary judgment on the issues of negligence and serious injury, i.e., on the issue of liability (see Ruzycki v Baker, 301 AD2d 48, 52), and seeking dismissal of the second affirmative defense alleging comparative negligence. The motion was made three weeks after joinder of issue and before any discovery was conducted. “In light of the drastic nature of summary judgment, the interests of justice will be served by denying plaintiff[’s] motion at this time so as to allow [defendants] the opportunity to obtain discovery of the facts of the accident” and the severity of plaintiffs injuries (Johannsdottir v Kohn, 90 AD2d 842, 843). In any event, plaintiff failed to meet her burden of demonstrating the absence of any material issues of fact with respect to defendant’s negligence and her alleged comparative negligence (see Thoma v Ronai, 82 NY2d 736, 737; Schmidt v Flickinger Co., 88 AD2d 1068). Plaintiff also failed to submit evidence in admissible form establishing that she sustained a serious injury within the meaning of Insurance Law § 5102 (d). The uncertified discharge summary from the hospital where plaintiff was treated following the accident and the unsworn letter of plaintiff’s treating physician are not in admissible form (see Joseph E.G. v East Irondequoit Cent. School Dist., 273 AD2d 835, 836). Present — Pigott, Jr., P.J., Green, Pine, Hayes and Gorski, JJ.