

Kline v Mitchell (2017 NY Slip Op 02976)





Kline v Mitchell


2017 NY Slip Op 02976


Decided on April 19, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 19, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
JOSEPH J. MALTESE
BETSY BARROS, JJ.


2015-11339
 (Index No. 603566/13)

[*1]Brian K. Kline, respondent,
vAnn 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.

DECISION & ORDER
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 AD3d 844). 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 AD3d at 845; Estaba v Quow, 74 AD3d 734, 735; Bojorquez v Sanchez, 65 AD3d 1179, 1180; I Mei Chou v Welsh, 15 AD3d 622).
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.
DILLON, J.P., CHAMBERS, SGROI, MALTESE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


