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Conde v. Eric Service Corp.

Appellate Division of the Supreme Court of New York, Second Department
Feb 26, 1990
158 A.D.2d 651 (N.Y. App. Div. 1990)

Opinion

February 26, 1990

Appeal from the Supreme Court, Queens County (Di Tucci, J.).


Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants' present contention, the medical reports and affidavits submitted by the plaintiffs in opposition to the motion for summary judgment contained prima facie proof that each plaintiff suffered "serious injury" within the meaning of Insurance Law § 5102 (d). The medical opinions rendered by the plaintiffs' physicians were allegedly not based solely upon the subjective complaints of their patients. Rather, they purported to be premised largely upon objectively measured and quantified injuries which were sufficient to demonstrate prima facie that each plaintiff suffered a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]; see, Lopez v Senatore, 65 N.Y.2d 1017; Swenning v Wankel, 140 A.D.2d 428). Accordingly, the plaintiffs' evidence was sufficient to defeat the defendants' motion for summary judgment.

Insofar as the defendants attack the credibility of the plaintiffs' physicians on this appeal, we note that the resolution of issues of credibility is inappropriate on a motion for summary judgment (see, Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338; Combs v Incorporated Vil. of Freeport, 139 A.D.2d 688). Lawrence, J.P., Rubin, Sullivan and Balletta, JJ., concur.


Summaries of

Conde v. Eric Service Corp.

Appellate Division of the Supreme Court of New York, Second Department
Feb 26, 1990
158 A.D.2d 651 (N.Y. App. Div. 1990)
Case details for

Conde v. Eric Service Corp.

Case Details

Full title:MARIE CONDE, Individually and as Mother and Natural Guardian of GRACE…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 26, 1990

Citations

158 A.D.2d 651 (N.Y. App. Div. 1990)
552 N.Y.S.2d 121

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