Morselling v. Frankel

161 A.D.2d 748

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1990
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Saladino, J.), dated April 10, 1989, which denied the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contentions, the plaintiffs carried their burden of establishing a prima facie case of "serious injury” pursuant to Insurance Law § 5102 (d) (see, Licari v Elliott, 57 NY2d 230, 237; cf., Lopez v Senatore, 65 NY2d 1017). In opposition to the defendants’ motion for summary judgment, the injured plaintiff submitted her own affidavit, in which she complained of persistent pain, numbness and limitation of mobility, together with the medical reports of her treating orthopedic surgeon, who, after taking X rays, discerned the existence of various injuries which he described, with a reasonable degree of medical certainty, as "permanent” in nature. While the defendants submitted a physician’s report which concluded otherwise, the discrepancies in the reports "involve issues of credibility which are for a jury to determine” (see, Francis v Basic Metal, 144 AD2d 634, 635). Bracken, J. P., Brown, Lawrence and Hooper, JJ., concur.