KAREN LAWRENCE PLAINTIFF APPELLANT v. MARTIN MCCLARY AND NANETTE MCCLARY DEFENDANTS RESPONDENTS (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum:  Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle accident alleging, inter alia, she sustained a stress fracture in her left foot as a result of the accident.   Following discovery, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and, in opposing the motion, plaintiff relied exclusively on the “fracture” category of serious injury.   We agree with plaintiff that Supreme Court erred in granting the motion.   Although defendants met their initial burden, we conclude that plaintiff raised an issue of fact in opposition to the motion by submitting the affidavits of her primary care physician and podiatrist, both of whom opined that, based upon a reasonable degree of medical certainty, plaintiff sustained a distal left 5th metatarsal fracture in the subject motor vehicle accident (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).   Although defendants' expert concluded otherwise, it is well settled that “ ‘conflicting expert opinions may not be resolved on a motion for summary judgment’ “ (Edwards v. Devine, 111 AD3d 1370, 1372;  see Pittman v. Rickard, 295 A.D.2d 1003, 1004).   Furthermore, although defendants are correct that plaintiff's podiatrist initially diagnosed only a “possible stress fracture” when reviewing X rays of plaintiff's left foot, we note that he thereafter determined that a subsequent bone scan showed a healing stress fracture.   In any event, the alleged conflict in the podiatrist's diagnoses presents a credibility issue that cannot be resolved in the context of a motion for summary judgment (see Rew v. County of Niagara, 115 AD3d 1316, 1318).

Frances E. Cafarell

Clerk of the Court