Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered December 16, 2008, deemed from a judgment of the same court entered June 5, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2008 order granting defendants' motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed without costs, the order granting defendants' motion for summary judgment dismissing the complaint is vacated and defendants' motion for summary judgment is denied.

Plaintiff commenced this action to recover for personal injuries allegedly sustained in a motor vehicle accident on December 5, 1998. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Civil Court granted defendants' motion, and this appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Initially, we note that there is no merit to plaintiff's contention that the claim set forth in her bill of particulars, that she suffered a fracture of her left elbow, was "virtually unopposed" by defendants. To the contrary, defendants' orthopedist noted that his examination of plaintiff, performed nine years after the subject accident, revealed "[n]o clinical residual post possible chip fracture' left elbow," and he reported full range of motion of plaintiff's left elbow as compared to normal.

Even if it be assumed that defendants' admissible evidence was sufficient to make a prima facie showing that plaintiff did not sustain a serious injury to her left elbow within the meaning of Insurance Law § 5102 (d), we find that plaintiff's opposition papers raised a triable issue of fact with respect thereto.

In opposition to defendants' motion, plaintiff submitted an affirmation of her orthopedist, who stated that he had reviewed plaintiff's X rays and that the films revealed a fracture of the olecranon process of plaintiff's left elbow, which fracture was visible in two views. This evidence was sufficient to raise a triable issue of fact as to whether plaintiff sustained a serious [*2]injury pursuant to Insurance Law § 5102 (d) (see Gould v Ombrellino, 57 AD3d 608 [2008]; I Mei Chou v Welsh, 15 AD3d 622 [2005]; Keevins v Drobbin, 303 AD2d 463 [2003]). Accordingly, defendants' motion for summary judgment should have been denied.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010