Opinion
105 CA 21-00457
04-29-2022
Kiszeak D. SCOTT, Plaintiff-Respondent, v. Charles P. HARTMAN, Defendant-Appellant.
HAGELIN SPENCER LLC, BUFFALO (GRACE E. TESMER OF COUNSEL), FOR DEFENDANT-APPELLANT. VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
HAGELIN SPENCER LLC, BUFFALO (GRACE E. TESMER OF COUNSEL), FOR DEFENDANT-APPELLANT.
VANDETTE PENBERTHY LLP, BUFFALO (JAMES M. VANDETTE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages for the injuries she allegedly sustained in a motor vehicle accident. Supreme Court thereafter denied defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury that was causally related to the accident (see generally Insurance Law § 5102 [d] ). Defendant now appeals and we affirm.
We reject defendant's contention that the court erred in denying the motion because, even assuming, arguendo, that defendant satisfied his initial burden with respect to causation and every applicable category of serious injury, plaintiff submitted evidence raising triable questions of material fact in opposition thereto (see Cuyler v. Sepcic , 196 A.D.3d 1122, 1123, 147 N.Y.S.3d 907 [4th Dept. 2021] ; Green v. Repine , 186 A.D.3d 1059, 1061, 129 N.Y.S.3d 593 [4th Dept. 2020] ; Grier v. Mosey , 148 A.D.3d 1818, 1819, 50 N.Y.S.3d 759 [4th Dept. 2017] ). Indeed, "[i]t is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" ( Edwards v. Devine , 111 A.D.3d 1370, 1372, 975 N.Y.S.2d 277 [4th Dept. 2013] [internal quotation marks omitted]).