COOPER v. CITY OF ROCHESTER (2005)

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her vehicle was rear-ended by a vehicle driven by defendant Paulo Hernandez and owned by defendant City of Rochester.   Supreme Court properly denied plaintiff's motion for summary judgment on the issue of serious injury under Insurance Law § 5102(d).  Plaintiff met her initial burden of establishing that she sustained a serious injury (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Plaintiff's expert averred “to a reasonable degree of medical certainty that the motor vehicle accident of July 18, 2001 resulted in disruption of [plaintiff's] cervical spondylosis at C4-5 and C5-6.” Evidence of an aggravation of cervical spondylosis is sufficient to establish a serious injury (see Jones v. Fraser, 265 A.D.2d 773, 774-775, 698 N.Y.S.2d 57).   In opposition to the motion, defendants submitted expert evidence that plaintiff's complaints are unrelated to the motor vehicle accident, thus raising a triable issue of fact.  “It is well established that ‘conflicting expert opinions may not be resolved on a motion for summary judgment’ ” (Pittman v. Rickard, 295 A.D.2d 1003, 1004, 743 N.Y.S.2d 795, quoting Williams v. Lucianatelli, 259 A.D.2d 1003, 1003, 688 N.Y.S.2d 294).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: