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Feyler v. Ketelsen

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


April 13, 2010

DIANE FEYLER, RESPONDENT,
v.
OCKE KETELSEN, APPELLANT.

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated January 26, 2009, as denied his 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).

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.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, RUTH C. BALKIN, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Index No. 5343/07)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The defendant established, prima facie, through the affirmed reports of his medical experts, the plaintiff's medical and hospital records, and the plaintiff's deposition testimony, that the plaintiff 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; House v MTA Bus Co.,AD3d, 2010 NY Slip Op 01924 [2d Dept 2010]). In opposition, the plaintiff failed to submit any objective medical evidence sufficient to raise a triable issue of fact as to whether she sustained a serious injury to her head or brain within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see House v MTA Bus Co., AD3d, 2010 NY Slip Op 01924 [2d Dept 2010]; Noh v Duffe, 70 AD3d 1017).

FISHER, J.P., COVELLO, BALKIN, LEVENTHAL and LOTT, JJ., concur.

20100413

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