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Nkhereanye v. Hillaire

Appellate Division of the Supreme Court of New York, Second Department
Dec 5, 2006
35 A.D.3d 419 (N.Y. App. Div. 2006)

Opinion

No. 2005-09929.

December 5, 2006.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dabiri, J.), dated August 17, 2005, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Schwartzapfel Novick Truhowsky Marcus, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for appellant.

Baker, McEvoy, Morrissey Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel), for respondents.

Before: Miller, J.P., Krausman, Spolzino, Fisher and Dillon, JJ., concur.


Ordered that the order is affirmed, with costs.

Contrary to the plaintiff's contention, the defendants established their prima facie entitlement to judgment as a matter of law through competent evidence that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject automobile accident ( see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; D'Alba v Yong-Ae Choi, 33 AD3d 650; Faulkner v Steinman, 28 AD3d 604; Giraldo v Mandanici, 24 AD3d 419; Meyers v Bobower Yeshiva Bnei Zion, 20 AD3d 456). In opposition, the plaintiff failed to raise a triable issue of fact. Most of the plaintiff's medical submissions were without probative value because they were unsworn or unaffirmed ( see Grasso v Angerami, 79 NY2d 813; Bycinthe v Kombos, 29 AD3d 845; Pagano v Kingsbury, 182 AD2d 268). The affirmed medical report of the plaintiff's orthopedist also lacked probative value because it relied on the unsworn reports of others ( see Baksh v Shabi, 32 AD3d 525; Felix v New York City Tr. Auth., 32 AD3d 527; Jian-Yu Zhang v Qiang Wang, 24 AD3d 611; Friedman v U-Haul Truck Rental, 216 AD2d 266). The remainder of the plaintiffs submissions was insufficient to raise a triable issue of fact ( see Brobeck v Jolloh, 32 AD3d 526).


Summaries of

Nkhereanye v. Hillaire

Appellate Division of the Supreme Court of New York, Second Department
Dec 5, 2006
35 A.D.3d 419 (N.Y. App. Div. 2006)
Case details for

Nkhereanye v. Hillaire

Case Details

Full title:NEO NKHEREANYE, Appellant, v. INATUS HILLAIRE et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 5, 2006

Citations

35 A.D.3d 419 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 9202
826 N.Y.S.2d 372

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