In support of the plaintiff’s [respondent’s] cross motion, she relied upon, inter alia, Dr. Westreich’s affirmation, which was sufficient to meet her prima facie burden of showing that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, inasmuch as she sustained a fractured nose. In opposition, the appellants [defendants] raised a triable issue of fact as to the existence of a fracture on the day of the accident and, thus, whether the accident caused a fractured nose. In this respect, the appellants relied upon, inter alia, the plaintiff’s hospital records, which revealed that the CT scan of her head on the day of the accident was “unremarkable.”
This case is interesting because the Appellate Division, in a 5102(d) matter, looked to see if the injured persons medical records contradicted the affirmation of the injured person’s expert. This does not happen too frequently in no-fault practice, as we learned in Co-Op City Chiropractic, P.C. v. Mercury Ins. Group, 26 Misc.3d 145(A)(App. Term 2d Dept. 2010) and Infinity Health Products, Ltd. v. Mercury Ins. Co., 26 Misc.3d 142(A)(App. Term 2d Dept. 2010).
