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Supreme Court, Appellate Division, Second Department, New York.

Vladimir KOFMAN, respondent, v. Robin Rivers KELLER, appellant, et al., defendants.

Decided: February 22, 2005

A. GAIL PRUDENTI, P.J., ROBERT W. SCHMIDT, FRED T. SANTUCCI, DANIEL F. LUCIANO, and ROBERT A. SPOLZINO, JJ. Faust Goetz Schenker & Blee, LLP, New York, N.Y. (Erika C. Aljens of counsel), for appellant. Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Robin Rivers Keller appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated January 9, 2004, which denied her motion for summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is affirmed, with costs.

The appellant failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   Specifically, the plaintiff's medical records submitted by the appellant in support of her motion raised issues of fact as to whether the plaintiff sustained a medically-determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

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