        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

307
CA 12-01718
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


TARA TIWARI AND GANGA TIWARI,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

JEFFREY M. TYO AND MED INN CENTERS OF
AMERICA LLC, DOING BUSINESS AS DOUBLE
TREE CLUB HOTEL, DEFENDANTS-APPELLANTS.


HURWITZ & FINE, P.C., BUFFALO (TODD C. BUSHWAY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered April 24, 2012. The order granted the motion of
plaintiffs for partial summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion
seeking a determination that defendants’ negligence was the sole
proximate cause of the accident and as modified the order is affirmed
without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Tara Tiwari (plaintiff) when a vehicle operated
by defendant Jeffrey M. Tyo backed into him. According to plaintiff’s
deposition testimony, he was walking on a sidewalk approaching the
Double Tree Club hotel when he noticed two individuals walking toward
him in the opposite direction using the same sidewalk. Plaintiff left
the sidewalk and walked onto the adjacent hotel driveway. Tyo struck
plaintiff when he was backing up the hotel courtesy van in the
driveway. We conclude that Supreme Court erred in granting
plaintiffs’ motion for partial summary judgment on liability in its
entirety, and instead should have denied that part of the motion with
respect to the issue of proximate cause. We therefore modify the
order accordingly. Although the court properly granted plaintiffs’
motion insofar as it sought partial summary judgment on the issue of
defendants’ negligence, we conclude that plaintiffs failed to
establish in support of their motion that defendants’ negligence was
the sole proximate cause of the accident, i.e., that there was no
comparative negligence on the part of plaintiff (see DeBrine v
VanHarken, 83 AD3d 1437, 1438; Leahey v Fitzgerald, 1 AD3d 924, 926;
                                 -2-                           307
                                                         CA 12-01718

cf. Limardi v McLeod, 100 AD3d 1375, 1375-1376). With respect to the
issue of serious injury, we note that, in support of their motion,
plaintiffs submitted the affirmation of plaintiff’s physician who
based his conclusion that plaintiff sustained a serious injury on his
review of plaintiff’s MRI films, and we conclude that the expert’s
affirmation sets forth objective evidence of a serious injury (see
generally Nitti v Clerrico, 98 NY2d 345, 358). Contrary to
defendants’ contention, it was not necessary for the physician to
attach the MRI reports or films to his affirmation because he
indicated that he reviewed the actual MRI films upon which he relied
to form his opinion (cf. id.; Sherlock v Smith, 273 AD2d 95, 95).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
