Gould v. Ombrellino
| Decision Date | 09 December 2008 |
| Docket Number | 2007-08077. |
| Citation | 57 A.D.3d 608,2008 NY Slip Op 09749,869 N.Y.S.2d 567 |
| Parties | DANIEL GOULD, Appellant, v. CONCETTA OMBRELLINO, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing so much of the plaintiff's complaint as alleged a serious injury under the fracture category of Insurance Law § 5102 (d), and substituting therefor a provision denying that branch of the defendant's motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.
The Supreme Court correctly determined that the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury under the fracture, permanent consequential limitation of use, and/or significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). Contrary to the determination of the Supreme Court, in opposition, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury under the fracture category of Insurance Law § 5102 (d) as a result of the subject accident. The plaintiff relied upon, inter alia, the affirmation of his treating physician, Dr. Gracia Mayard. In that affirmation, Dr. Mayard diagnosed the plaintiff with a fracture of his left ninth rib as a result of the subject accident. That diagnosis was based on Dr. Mayard's review of the properly submitted medical records/reports of the plaintiff, which revealed the existence of a fracture of his left ninth rib, as well as Dr. Mayard's examinations of the plaintiff.
Contrary to the plaintiff's arguments on appeal, the affirmation of Dr. Mayard did not raise a triable issue of...
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