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

Eileen HAYDEN, Respondent, v. Bernard PLOTKIN, Appellant.

Decided: December 26, 2000

CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. Martyn, Toher, Esposito & Martyn, Mineola, N.Y. (Michael G. Conway of counsel), for appellant. Dominick Yezzo, Garden City, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (DiNoto, J.), entered February 2, 2000, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The defendant established a prima facie case that the plaintiff's injuries were not serious through the affirmed report of an orthopedist, who examined her and concluded that she sustained nothing more serious than a mild knee contusion which had resolved (see, Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176).   The plaintiff's affirmations in opposition were insufficient to raise a triable issue of fact (see, Cruse v. Berman, 276 A.D.2d 580, 714 N.Y.S.2d 311;  Grossman v. Wright, 268 A.D.2d 79, 707 N.Y.S.2d 233).


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