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 NY2d 1017 , 1020; Spezia v De Marco, 173 AD2d 462 , 463; Rotondi v Horning, 168 AD2d 944 ). The conflicting opinions of the medical experts raise issues of credibility which are for the jury to determine (see, Weider v Senebouthyrath, 182 AD2d 1124 ; Francis v Basic Metal, 144 AD2d 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 NY2d 230 ; Passalacqua v Tomko, 134 AD2d 961 ; Costa v Billingsley, 127 AD2d 990 ). (Appeal from Order of Supreme Court, Herkimer County, Tenney, J. — Summary Judgment.) Present — Callahan, J. P., Boomer, Pine, Fallon and Doerr, JJ.
Cases cited
- Spezia v. De Marco 173 AD2d 462 at 463 p. 976
- Francis v. Basic Metal Inc. 144 AD2d 634 at 635 p. 976
- Licari v. Elliott 57 NY2d 230 p. 976