Majority
p. 482Thomas F. Dabbs, Jr., Appellant, v Margaret Kelly et al., Respondents, et al., Defendants. (And a Third-Party Action.) [666 NYS2d 40]
—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (DiBlasi, J.), dated June 16, 1997, as denied his motion for summary judgment dismissing the respondents’ affirmative defense that he had not sustained a “serious injury” as defined by Insurance Law § 5102 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the plaintiff’s motion which was to dismiss the respondents’ affirmative defense that the plaintiff had not sustained a “serious
p. 483
injury” as defined by Insurance Law § 5102 (d). The plaintiff failed to submit sufficient evidence in admissible form to establish a prima facie case that the underlying collision was a proximate cause of the fracture which he suffered (see, Elter v Ritvo, 228 AD2d 410 ; Waaland v Weiss, 228 AD2d 435 ). Bracken, J. P., Pizzuto, Altman, Krausman and Lerner, JJ., concur.
Cases cited
- Waaland v. Weiss 228 AD2d 435 p. 483