In Hammett v. Diaz-Frias, 49 AD3d 285 [1st Dept. 2008] the Supreme Court in Bronx County dismissing the complaint, stating among other things that plaintiff had failed to provide "medical evidence of limitations of her functioning contemporaneous with the collision"; and stating further that the physician's (Dr. Hausknecht's) conclusions based on limitations found on a medical exam conducted 10 months after the accident "do not raise a factual issue of the significant or permanent consequential limitations from that collision". The Supreme Court, in support of its decision, expressly: (1) rejected the findings and the limitations found four days after the accident by plaintiff's initial physician (Dr. Howell) because he did not provide a quantitative or quantitative analysis in his report or specify the tests conducted; (2) rejected Dr. Howell's use and recitation of a contemporaneous unsworn report made by a Dr. Sloan which did provide a qualitative and/or quantitative opinion of plaintiff's limitations; and (3) rejected, as objective evidence, the MRI reports which showed disc bulges and herniations because Dr. Howell did not review of the films and merely recited reports. With regard to these issues, the Appellate Division held that the MRI reports were properly before the court since they were referred to by the experts for both sides, and that Dr. Sloan's unsworn report (which was relied upon by Dr. Howell) should have been considered by the court since "evidence otherwise excludable at trial may be considered to deny a motion for summary judgment provided that this evidence does not form the sole basis for the courts determination " The Appellate Division, First Department reversed and reinstated the complaint stating and holding, among other things, that: "Even though he (Dr. Hausknecht) did not examine plaintiff until 10 months after the incident, plaintiff's doctor was able to report that plaintiff's symptoms were caused by the June 2004 accident, that her condition was permanent in nature, in part an exacerbation of underlying degenerative joint disease and prior injuries,' and that she sustained permanent consequential limitation in her cervical and lumbosacral spine. This was sufficient to raise a triable issue of fact as to the permanence of the injury." (49 AD3d 285 at 286, 852 N.Y.S.2d 128.)