Opinion
2003-804 N C.
Decided February 3, 2004.
Appeal by plaintiff from so much of an order of the District Court, Nassau County (M. Massell, J.), entered March 24, 2003, as granted defendant's motion for summary judgment dismissing the complaint.
Order unanimously modified by granting defendant's motion for summary judgment to the extent of deeming as an established fact for all purposes in the action, pursuant to CPLR 3212 (g), that plaintiff did not sustain a fracture of his fifth metacarpal in his right hand; as so modified, affirmed without costs.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Plaintiff commenced this action to recover damages for injuries he allegedly sustained when he fell after slipping on wet stairs in defendant's building. As a result, the court erred when it applied the No-Fault Law and granted summary judgment dismissing the action due to plaintiff's failure to satisfy the serious injury threshold set forth therein (Insurance Law § 5104). The papers submitted by plaintiff in opposition to defendant's motion for summary judgment established that plaintiff sustained a sprain or strain in or near his right wrist. As a result, defendant is not entitled to summary judgment dismissing the action ( see Zuckerman v. City of New York, 49 NY2d 557). However, inasmuch as plaintiff's counsel conceded in his affirmation in opposition to defendant's motion for summary judgment that the two doctors, who examined plaintiff and who counsel intends to call as expert witnesses, concluded that plaintiff suffered a sprain or strain and that they did not find that plaintiff had sustained a fracture of the fifth metacarpal in plaintiff's right hand, as was alleged in plaintiff's bills of particulars, defendant is entitled to an order establishing said concession as a fact for all purposes in this action ( see CPLR 3212 [g]; Lambos v. Weintraub, 256 AD2d 446).