Bush v Robbins
2009 NY Slip Op 03115 [61 AD3d 801]
April 21, 2009
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 10, 2009


Brenda L. Bush, Appellant,
v
James W. Robbins, IV, et al., Respondents.

[*1] Law Offices of James L. Killerlane, P.C. (David Samel, New York, N.Y., of counsel), for appellant.

Penino & Moynihan, LLP, White Plains, N.Y. (Richard E. Rowe, Jr., of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered May 6, 2008, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs.

Contrary to the plaintiff's contentions, the submission of an affirmed medical report of one of the defendants' orthopedists, Joseph P. Laico, was sufficient for the defendants to meet their prima facie burden of showing that she 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 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). The affirmation of the plaintiff's treating physician, Michael I. Weintraub, was insufficient to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint. Mastro, J.P., Fisher, Miller, Dickerson and Chambers, JJ., concur.