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

1052
CA 15-00118
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


DONNOVAN CRUTCHFIELD, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRIAN JONES, POWER & CONSTRUCTION GROUP, INC.,
AND LIVINGSTON ASSOCIATES, INC.,
DEFENDANTS-RESPONDENTS.


PARISI & BELLAVIA, LLP, ROCHESTER (TIMOTHY C. BELLAVIA OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF JOHN WALLACE, ROCHESTER (ALYSON CULLITON OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered October 3, 2014. The order, insofar as
appealed from, denied that part of the cross motion of plaintiff
seeking partial summary judgment on the issue of serious injury.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained as the result of a motor vehicle
accident, and he contends on appeal that Supreme Court erred in
denying his cross motion for summary judgment determining that he
sustained a serious injury within the meaning of Insurance Law § 5102
(d). We affirm.

     Contrary to plaintiff’s contention, the court properly denied his
cross motion with respect to the three categories of serious injury
alleged by plaintiff in support of the cross motion. We agree with
plaintiff that he met his initial burden with respect to the fracture
category by submitting the affirmation of his physician, who examined
an X ray of plaintiff’s neck and opined that plaintiff sustained an
anterior compression fracture of his C6 vertebra (see Madafferi v
Herring, 104 AD3d 1293, 1293-1294). Nevertheless, defendants raised a
triable issue of fact concerning that category by submitting, inter
alia, the affirmed report of their medical expert concluding that
there was no evidence of such a fracture. 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
Lawrence v McClary, 125 AD3d 1502, 1503). Even assuming, arguendo,
that plaintiff met his initial burden with respect to the remaining
                                 -2-                          1052
                                                         CA 15-00118

categories alleged by him in support of the cross motion, we conclude
that defendants raised a triable issue of fact (see generally Alvarez
v Prospect Hosp., 68 NY2d 320, 324).




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
