Summary
In Morsellino v. Frankel, 161 A.D.2d 748, 556 N.Y.S.2d 103 (2d Dept. 1990), the defendants appealed from an order that denied their motion for summary judgment dismissing the complaint.
Summary of this case from Filippini v. BeckworthOpinion
May 29, 1990
Appeal from the Supreme Court, Nassau County (Saladino, J.).
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 N.Y.2d 230, 237; cf., Lopez v. Senatore, 65 N.Y.2d 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 A.D.2d 634, 635). Bracken, J.P., Brown, Lawrence and Kooper, JJ., concur.