Opinion
04-19-2017
Brian K. KLINE, respondent, v. Ann MITCHELL, appellant.
Andrea G. Sawyers, Melville, NY (Scott W. Driver of counsel), for appellant. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for respondent.
Andrea G. Sawyers, Melville, NY (Scott W. Driver of counsel), for appellant.
Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn ], of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Capetola, J.), dated October 29, 2015, as denied that branch of her motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident by submitting an expert's affirmed report and MRI report indicating that the plaintiff did not sustain a fracture to her left elbow (see Uribe v. Jimenez, 133 A.D.3d 844, 20 N.Y.S.3d 555 ). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury to his left elbow as a result of the accident. Specifically, the plaintiff submitted an affirmation from his treating physician, who concluded that an X-ray film of the left elbow revealed a fracture that was caused by the subject accident (see Uribe v. Jimenez, 133 A.D.3d at 845, 20 N.Y.S.3d 555 ; Estaba v. Quow, 74 A.D.3d 734, 735, 902 N.Y.S.2d 155 ; Bojorquez v. Sanchez, 65 A.D.3d 1179, 1180, 885 N.Y.S.2d 362 ; I Mei Chou v. Welsh, 15 A.D.3d 622, 791 N.Y.S.2d 579 ).
Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.