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Bush v. Robbins

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 21, 2009

BRENDA L. BUSH, APPELLANT,
v.
JAMES W. ROBBINS, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered May 6, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, HOWARD MILLER, THOMAS A. DICKERSON and CHERYL E. CHAMBERS, JJ.

(Index No. 1441/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contentions, the submission of an affirmed medical report of one of the defendants' orthopedists, Joseph P. Laico, was sufficient for the defendants to meet their prima facie burden of showing that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The affirmation of the plaintiff's treating physician, Michael I. Weintraub, was insufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

MASTRO, J.P., FISHER, MILLER, DICKERSON and CHAMBERS, JJ., concur.

20090421

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