LAVY v. Medhi Hossain, et al., Defendants. (2012)

Karen LAVY, Plaintiff–Respondent, v. Mohammadulla ZAMAN, Defendant–Appellant, Medhi Hossain, et al., Defendants.

Decided: May 10, 2012

FRIEDMAN, J.P., SWEENY, DEGRASSE, ABDUS–SALAAM, ROMÁN, JJ.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellant. Zalman Schnurman & Miner P.C., New York (Marc H. Miner of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered on or about October 19, 2011, which, inter alia, denied Mohammadulla Zaman's (defendant) motion for summary judgment dismissing the complaint alleging a “fracture” under Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff allegedly sustained a nasal fracture when a cab in which she was a passenger rear-ended another vehicle, causing her face to hit the partition between the front and rear seats of the cab.

Defendant failed to meet his prima facie burden of establishing that plaintiff did not sustain a nasal fracture as a result of the accident. In any event defendant's expert acknowledged that his review of the emergency room records shows that the hospital had clinically diagnosed plaintiff with a nasal fracture, thereby raising issues of fact (see Suazo v. Brown, 88 AD3d 602 [2011]; Elias v. Mahlah, 58 AD3d 434 [2009] ).

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