MEI CHOU v. WELSH

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

I MEI CHOU, respondent, v. Lisa Ann WELSH, et al., appellants.

Decided: February 28, 2005

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), for appellants. McMahon, Martine & Gallagher, LLP, New York, N.Y. (Patrick W. Brophy of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated June 20, 2002, which denied their 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.

Although the defendants made a prima facie showing of their entitlement to summary judgment (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), the plaintiff submitted an affirmation from a physician stating that he examined a CT Scan of the plaintiff's lumbar spine and observed a fracture at the L3 level which he attributed to the subject automobile accident.   This evidence was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury (see Poma v. Ortiz, 2 A.D.3d 616, 768 N.Y.S.2d 336;  Smolyar v. Krongauz, 2 A.D.3d 518, 767 N.Y.S.2d 873).

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