Cavallaro v. Baker

Nov 18, 1992
Versions:187 A.D.2d 976
590 N.Y.S.2d 339
1992 N.Y. App. Div. LEXIS 13992

Lead Opinion

Order reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment. The opposing affidavits of plaintiff, her treating physician and medical expert were sufficient to raise a triable issue of fact whether plaintiff suffered a serious injury within the meaning of the No-Fault Law (see, Lopez v Senatore, 65 NY2d 1017, 1020; Spezia v De Marco, 173 AD2d 462, 463; Rotondi v Horning, 168 AD2d 944). The conflicting opinions of the medical experts raise issues of credibility which are for the jury to determine (see, Weider v Senebouthyrath, 182 AD2d 1124; Francis v Basic Metal, 144 AD2d 634, 635).

All concur, except Boomer, J., who dissents and votes to affirm in the following Memorandum.





Dissenting Opinion

Boomer, J. (dissenting).

I respectfully dissent. Contrary to the determination of the majority, the affidavits of plaintiff’s treating physician and of her medical expert did not raise an issue of fact whether plaintiff suffered a serious injury. The medical opinions relied upon by plaintiff were based upon plaintiff’s subjective complaints and are not sufficient to prove a serious injury within the meaning of Insurance Law § 5102 (see, Licari v Elliott, 57 NY2d 230; Passalacqua v Tomko, 134 AD2d 961; Costa v Billingsley, 127 AD2d 990). (Appeal from Order of Supreme Court, Herkimer County, Tenney, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Pine, Fallon and Doerr, JJ.