Cooper v. City of Rochester

16 A.D.3d 1117, 791 N.Y.S.2d 239, 2005 N.Y. App. Div. LEXIS 2743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Monroe County (Andrew V Siracuse, J.), entered March 25, 2004. The order denied plaintiffs motion for summary judgment on the issue of serious injury under Insurance Law § 5102 (d).

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle was rear-ended by a vehicle driven by defendant Paulo Hernandez and owned by defendant City of Rochester. Supreme Court properly denied plaintiffs motion for summary judgment on the issue of serious injury under Insurance Law § 5102 (d). Plaintiff met her initial burden of establishing that she sustained a serious injury (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Plaintiffs expert averred “to a reasonable degree of medical certainty that the motor vehicle accident of July 18, 2001 resulted in disruption of [plaintiffs] cervical spondylosis at C4-5 and C5-6.” Evidence of an aggravation of cervical spondylosis is sufficient to establish a serious injury (see Jones v Fraser, 265 AD2d 773, 774-775 [1999]). In opposition to the motion, defendants submitted expert evidence that plaintiffs complaints are unrelated to the motor vehicle accident, thus raising a triable issue of fact. “It is well established that ‘conflicting expert opinions may not be resolved on a motion for summary judgment’ ” (Pittman v Rickard, 295 AD2d 1003,1004 [2002], quoting Williams v Lucianatelli, 259 AD2d 1003, 1003 [1999]). Present—Hurlbutt, J.P., Smith, Pine, Lawton and Hayes, JJ.