Tagger v. Olympic Van Line, Inc.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated March 8, 2006, as granted that branch of the plaintiffs motion which was for summary judgment dismissing the eighth “affirmative defense” asserting that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was for summary judgment dismissing the eighth “affirmative defense.” The plaintiff made a prima facie showing that the subject accident caused her to sustain a fracture, and thus, a “serious injury” within the meaning of Insurance Law § 5102 (d). In opposition, the defendants failed to raise a triable issue of fact (see generally Baez v Rahamatali, 6 NY3d 868, 869 [2006]; Cervino v Gladysz-Steliga, 36 AD3d 744 [2007]; cf. Benedetto v Carrera Realty Corp., 32 AD3d 874, 876 [2006]). Mastro, J.E, Ritter, Skelos, Garni and McCarthy, JJ., concur.