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GLADYS BOJORQUEZ v. SANCHEZ

Appellate Division of the Supreme Court of New York, Second Department.
Sep 22, 2009
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Ordered that the order is affirmed, with costs.

The defendant made a prima facie showing of his entitlement to judgment as a matter of law ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, in opposition to the defendant's motion, the plaintiff submitted, inter alia, an affirmed X ray report which revealed an avulsion fracture of the left hip, as well as an affirmation from her treating physician stating that he reviewed that X ray report and concluded that the fracture was caused by the subject accident. This evidence was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury under the fracture category of Insurance Law ยง 5102 (d) as a result of the subject accident ( see Gould v Ombrellino, 57 AD3d 608; I Mei Chou v Welsh, 15 AD3d 622; Keevins v Drobbin, 303 AD2d 463). Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.