BOJORQUEZ v. SANCHEZ

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Gladys BOJORQUEZ, respondent, v. Luis SANCHEZ, appellant.

Decided: September 22, 2009

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH COVELLO, RANDALL T. ENG, and L. PRISCILLA HALL, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Mead, Hecht, Conklin & Gallagher, LLP [Sara Luca Salvi and Elizabeth M. Hecht], of counsel), for appellant. Joseph A. Faraldo, Kew Gardens, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated January 30, 2009, 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, with costs.

The defendant made a prima facie showing of his entitlement to judgment as a matter of law (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, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). However, in opposition to the defendant's motion, the plaintiff submitted, inter alia, an affirmed X-ray report which revealed an avulsion fracture of the left hip, as well as an affirmation from her treating physician stating that he reviewed that X-ray report and concluded that the fracture was caused by the subject accident. This evidence was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury under the fracture category of Insurance Law § 5102(d) as a result of the subject accident (see Gould v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567; I Mei Chou v. Welsh, 15 A.D.3d 622, 791 N.Y.S.2d 579; Keevins v. Drobbin, 303 A.D.2d 463, 758 N.Y.S.2d 76). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

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