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McNeil v. Crutchley

250 A.D.2d 655 Court N.Y. App. Div. Decision date 1998-05-11 English

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p. 655
Marvin McNeil, Jr., an Infant, by His Mother and Natural Guardian, Michele Nistico, et al., Respondents, v Francis Crutchley, Appellant.
[671 NYS2d 692]

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), dated July 1, 1997, as denied that branch of his motion pursuant to Insurance Law § 5102 (d) which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Marvin McNeil.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed in its entirety.

The affirmed reports of Frank M. Hudak, M.D., and Alexander B. Rimalovski, M.D., which the defendant submitted in support of his motion for summary judgment, made out a prima facie case that the plaintiff Marvin McNeil did not sustain a

p. 656
serious injury as defined by Insurance Law § 5102 (d). The affirmation of Richard Lee, a chiropractor, which was submitted in opposition to the motion, did not constitute competent evidence (see, CPLR 2106; Feintuch v Grella, 209 AD2d 377 ) and thus did not overcome the defendant’s showing. Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.

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