Murray v. Stabile

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Robbins, J.), entered October 4, 2006, which granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is affirmed, with costs payable by the plaintiff to the defendant Robert Stabile.

The defendants established, prima facie, that the plaintiff 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 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiffs assertions on appeal, the submissions of his treating orthopedic surgeon failed to raise a triable issue of fact as to whether he sustained a fracture of the type contemplated by Insurance Law § 5102 (d). The vague reference of the plaintiffs orthopedic surgeon in his submissions that the plaintiff sustained an “osteochondral fracture” was insufficient to raise a triable issue of fact (see generally Catalan v Empire Stor. Warehouse, 213 AD2d 366 , 367 [1995]). Rivera, J.P., Krausman, Florio, Carni and Balkin, JJ., concur.