KAPLUN v. SEPTAMA

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

Sofya KAPLUN, respondent, v. Miguel SEPTAMA, appellant.

Decided: March 27, 2007

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, JOSEPH COVELLO, and DANIEL D. ANGIOLILLO, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Michael I. Josephs of counsel), for appellant.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Douglass, J.), dated May 3, 2006, which denied his motion 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).

ORDERED that the order is affirmed, without costs or disbursements.

The defendant met his burden of establishing prima facie that the plaintiff did not sustain a serious injury from the subject accident (see Insurance Law § 5102[d];  Baez v. Rahamatali, 6 N.Y.3d 868, 869, 817 N.Y.S.2d 204, 850 N.E.2d 19;  Cervino v. Gladysz-Steliga, 36 A.D.3d 744, 829 N.Y.S.2d 169;  Wright v. Peralta, 26 A.D.3d 489, 809 N.Y.S.2d 465).   In opposition, the plaintiff raised a triable issue of fact by presenting medical evidence contemporaneous with the subject accident that she sustained a possible fracture from the subject accident (see Bonner v. Hill, 302 A.D.2d 544, 756 N.Y.S.2d 82).   Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

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