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Peprah v. McDonald

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 4, 2009

KWAKU PEPRAH, PLAINTIFF-APPELLANT,
v.
CURTIS MCDONALD, DEFENDANT-RESPONDENT.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about November 27, 2007, which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and denied plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.

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.

Andrias, J.P., Buckley, Moskowitz, DeGrasse, Richter, JJ.

8091/03

The motion court correctly determined that defendant established his prima facie entitlement to summary judgment with the affidavit of his medical expert, Dr. Nathan, whose examination of plaintiff disclosed no objective medical findings supporting his serious injury claims (see Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Plaintiff, in response, failed to raise a triable issue of fact precluding summary judgment. The affidavit of plaintiff's medical expert was insufficient in that it failed to adduce evidence of serious injury based upon objective medical findings made within a reasonable time after the accident (see e.g. Santana v Khan, 48 AD3d 318 [2008]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090604

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