        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

153
CA 14-01389
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.


KAREN E. LAWRENCE, PLAINTIFF-APPELLANT,


                    V                             MEMORANDUM AND ORDER

MARTIN W. MCCLARY AND NANETTE C. MCCLARY,
DEFENDANTS-RESPONDENTS.


FOLEY & FOLEY, PALMYRA (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

HAGELIN KENT LLC, BUFFALO (BRENT C. SEYMOUR OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Ontario County
(Frederick G. Reed, A.J.), entered May 2, 2014. The order granted the
motion of defendants for summary judgment and dismissed the complaint.

     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 NY2d 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 AD2d 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
                                 -2-                          153
                                                        CA 14-01389

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).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
