Partlow v. Meehan

Rubin, J.,

dissents and votes to affirm the order appealed from with the following memorandum in which Brown, J., concurs. Summary judgment is an appropriate vehicle for determining whether a plaintiff can establish, prima facie, a serious injury within the meaning of Insurance Law § 5102 (d) (see, Wright v Melendez, 140 AD2d 337). Relying on the rule of the Appellate Division, Third Department, which would require the defendants to submit a physician’s affidavit in order to prevail on a motion for summary judgment (see, Proper v Saunders, 102 AD2d 907; Savage v Delacruz, 100 AD2d 707; La…