Ansah v. Pollack

— Order, Supreme Court, New York County (Martin Evans, J.), entered on or about April 9, 1991, which, inter alia, denied defendant and third-party-plaintiffs’ motion for summary judgment dismissing the plaintiffs’ complaint, affirmed, without costs. The plaintiffs have asserted a serious injury within the meaning of Insurance Law § 5102 (d), requiring the court to make a threshold inquiry as to whether or not the injuries are serious within the meaning of that statute (Lowe v Bennett, 122 AD2d 728, affd 69 NY2d 700 [1986]). Here, the court was faced with conflicting affidavits of medical experts for both sides, each supported by written and detailed reports. Specifically, there is a dispute between the parties as to whether or not the accident of November 8, 1986 (1) aggravated a previously existing defect in the heart (a septal defect or abnormal opening between the chambers of the heart), (2) caused a significant or permanent limitation of either the cervical or lumbosacral spine and (3) caused a scar above the right eyebrow. Dr. Nathaniel Shafer, plaintiffs’ expert, relates all of these injuries to the accident, including a "contusion to the heart with septal defect.” Dr. Alan Feit, the defendant’s expert, and the dissent read this later phrase as indicating that the accident caused the septal defect rather than that the accident caused a contusion to a heart which had a septal defect. The thrust of the report by Dr. Feit was that the septal defect was congenital and could not have been caused by the accident. Second, the reports differ as to the injury to the cervical and lumbosacral spine. Dr. Shafer contends there is a significant limitation of movement and Dr. Feit denies this. Third, while the word "scar” is not mentioned in the bill of particulars, there is a clear statement there that there were lacerations and swelling of the right eye. Accordingly, on this record the plaintiffs made out a prima facie case of serious injury and the motion court properly declined to resolve credibility issues on the motion for sum [538] mary judgment (see, Pautote Big Alpha Foods v Schefman, 121 AD2d 295 [1986]). Concur — Murphy, P. J., Rosenberger, Kassal and Smith, JJ.