Conde v. Eric Service Corp.

158 A.D.2d 651, 552 N.Y.S.2d 121, 1990 N.Y. App. Div. LEXIS 2295

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1990
• Status: Published

Opinion

Contrary to the defendants’ present contention, the medical reports and affidavits submitted by the plaintiffs in opposition to the motion for summary judgment contained prima facie proof that each plaintiff suffered "serious injury” within the meaning of Insurance Law § 5102 (d). The medical opinions rendered by the plaintiffs’ physicians were allegedly not based solely upon the subjective complaints of their patients. Rather, they purported to be premised largely upon objectively measured and quantified injuries which were sufficient to demonstrate prima facie that each plaintiff suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]; see, Lopez v Senatore, 65 NY2d 1017; Swenning v Wankel, 140 AD2d 428). Accordingly, the plaintiffs’ evidence was sufficient to defeat the defendants’ motion for summary judgment.

Insofar as the defendants attack the credibility of the plaintiffs’ physicians on this appeal, we note that the resolution of issues of credibility is inappropriate on a motion for summary judgment (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338; Combs v Incorporated Vil. of Freeport, 139 AD2d 688). Lawrence, J. P., Rubin, Sullivan and Balletta, JJ., concur.