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Williams v. Lucianatelli [4th Dept 1999

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 31, 1999
(N.Y. App. Div. Mar. 31, 1999)

Opinion

March 31, 1999

Appeal from Order of Supreme Court, Oneida County, Tenney, J. — Summary Judgment.

PRESENT: HAYES, J. P., WISNER, PIGOTT, JR., SCUDDER AND CALLAHAN, JJ.


Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). In opposition to the motion, plaintiff raised a question of fact whether he sustained a fractured sternum in the automobile accident ( cf., Eisen v. Walter Samuels, 215 A.D.2d 149, 150). Plaintiff submitted the affidavit of his treating physician, who opined that plaintiff had sustained a fractured sternum, and the records of plaintiff's emergency room treatment, which also indicate that diagnosis. The report of the X ray taken in the emergency room indicates a "questionable non-displaced fracture of the xiphoid process". Although a radiologist who reviewed subsequent X rays concluded that plaintiff had not sustained a fracture and a physician who examined plaintiff on behalf of defendant concurred in that diagnosis, conflicting expert opinions may not be resolved on a motion for summary judgment ( see, Bitici v. New York City Tr. Auth., 245 A.D.2d 157; Cassagnol v. Williamsburg Plaza Taxi, 234 A.D.2d 208, 210).


Summaries of

Williams v. Lucianatelli [4th Dept 1999

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 31, 1999
(N.Y. App. Div. Mar. 31, 1999)
Case details for

Williams v. Lucianatelli [4th Dept 1999

Case Details

Full title:PAUL R. WILLIAMS, PLAINTIFF-APPELLANT, v. VINCENT S. LUCIANATELLI…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 31, 1999

Citations

(N.Y. App. Div. Mar. 31, 1999)