Opinion
CA 02-00433
June 14, 2002.
Appeal from part of an order of Supreme Court, Erie County (Notaro, J.), entered December 11, 2001, that denied defendant's motion for summary judgment.
BURGIO, KITA CURVIN, BUFFALO (HILARY C. BANKER OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAW OFFICES OF RICHARD S. BINKO, CHEEKTOWAGA (JEFFREY S. KRAJEWSKI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The affidavit of plaintiff's expert raised an issue of fact whether she sustained a right brachial plexopathy. "It is well established that `conflicting expert opinions may not be resolved on a motion for summary judgment'" ( Corbett v. County of Onondaga, 291 A.D.2d 886, 887, quoting Williams v. Lucianatelli, 259 A.D.2d 1003). We have reviewed defendant's remaining contention and conclude that it is without merit.