Williams v. Lucianatelli

Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). In opposition to the motion, plaintiff raised a question of fact whether he sustained a fractured sternum in the automobile accident (cf., Eisen v Walter & Samuels, 215 AD2d 149, 150). Plaintiff submitted the affidavit of his treating physician, who opined that plaintiff had sustained a fractured sternum, and the records of plaintiff’s emergency room treatment, which also indicate that diagnosis. The report of the X ray taken in the emergency room indicates a “questionable nondisplaced fracture of the xiphoid process.” Although a radiologist who reviewed subsequent X rays concluded that plaintiff had not sustained a fracture and a physician who examined plaintiff on behalf of defendant concurred in that diagnosis, conflicting expert opinions may not be resolved on a motion for summary judgment (see, Bitici v New York City Tr. Auth., 245 AD2d 157; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208, 210). (Appeal from Order of Supreme Court, Oneida County, Tenney, J. — Summary Judgment.) Present — Hayes, J. P., Wisner, Pigott, Jr., Scudder and Callahan, JJ.