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Cavallaro v. Baker

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 18, 1992
187 A.D.2d 976 (N.Y. App. Div. 1992)

Opinion

November 18, 1992

Appeal from the Supreme Court, Herkimer County, Tenney, J.

Present — Callahan, J.P., Boomer, Pine, Fallon and Doerr, JJ.


Order reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant's motion for summary judgment. The opposing affidavits of plaintiff, her treating physician and medical expert were sufficient to raise a triable issue of fact whether plaintiff suffered a serious injury within the meaning of the No-Fault Law (see, Lopez v Senatore, 65 N.Y.2d 1017, 1020; Spezia v De Marco, 173 A.D.2d 462, 463; Rotondi v Horning, 168 A.D.2d 944). The conflicting opinions of the medical experts raise issues of credibility which are for the jury to determine (see, Weider v Senebouthyrath, 182 A.D.2d 1124; Francis v Basic Metal, 144 A.D.2d 634, 635).

All concur, except Boomer, J., who dissents and votes to affirm in the following Memorandum.


I respectfully dissent. Contrary to the determination of the majority, the affidavits of plaintiff's treating physician and of her medical expert did not raise an issue of fact whether plaintiff suffered a serious injury. The medical opinions relied upon by plaintiff were based upon plaintiff's subjective complaints and are not sufficient to prove a serious injury within the meaning of Insurance Law § 5102 (see, Licari v Elliott, 57 N.Y.2d 230; Passalacqua v Tomko, 134 A.D.2d 961; Costa v Billingsley, 127 A.D.2d 990).


Summaries of

Cavallaro v. Baker

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 18, 1992
187 A.D.2d 976 (N.Y. App. Div. 1992)
Case details for

Cavallaro v. Baker

Case Details

Full title:SHELLY A. CAVALLARO et al., Appellants, v. ALLAN BAKER, Respondent

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

Date published: Nov 18, 1992

Citations

187 A.D.2d 976 (N.Y. App. Div. 1992)

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