Lavy v Zaman

Lavy v Zaman 2012 NY Slip Op 03744 Decided on May 10, 2012 Appellate Division, First Department 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.

Decided on May 10, 2012
Friedman, J.P., Sweeny, DeGrasse, Abdus-Salaam, Román, JJ.
7621 305093/09

[*1]Karen Lavy, Plaintiff-Respondent,

v

Mohammadulla Zaman, Defendant-Appellant, Medhi Hossain, et al., Defendants.




Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellant.
Zalman Schnurman & Miner P.C., New York (Marc H. Miner
of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about October 19, 2011, which, inter alia, denied Mohammadulla Zaman's (defendant) motion for summary judgment dismissing the complaint alleging a "fracture" under Insurance Law § 5102(d), unanimously affirmed, without costs.

Plaintiff allegedly sustained a nasal fracture when a cab in which she was a passenger rear-ended another vehicle, causing her face to hit the partition between the front and rear seats of the cab.

Defendant failed to meet his prima facie burden of establishing that plaintiff did not sustain a nasal fracture as a result of the accident. In any event defendant's expert acknowledged that his review of the emergency room records shows that the hospital had clinically diagnosed plaintiff with a nasal fracture, thereby raising issues of fact (see Suazo v Brown, 88 AD3d 602 [2011]; Elias v Mahlah, 58 AD3d 434 [2009]).

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

ENTERED: MAY 10, 2012

CLERK