Williams v. Lucianatelli
| Decision Date | 31 March 1999 |
| Parties | PAUL R. WILLIAMS, Appellant,<BR>v.<BR>VINCENT S. LUCIANATELLI, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Present €” Hayes, J. P., Wisner, Pigott, Jr., Scudder and Callahan, JJ.
Order unanimously reversed on the law without costs, motion denied and complaint reinstated.
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 AD2d 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 nondisplaced 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 AD2d 157; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208, 210).
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