| Sung v Mihalios |
| 2007 NY Slip Op 07895 [44 AD3d 500] |
| October 18, 2007 |
| Appellate Division, First Department |
| Michael C. Sung, Individually and as Father and Natural Guardianof Jessica Sung, an Infant, et al., Respondent, v Calliope Mihalios et al.,Appellants. |
—[*1] Sim & Park, LLP, New York City (Sand J. Sim of counsel), for respondent.
Order, Supreme Court, Bronx County (Patricia A. Williams, J.), entered January 16, 2007,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
The IAS court properly denied defendant's motion for summary judgment because triableissues exist about whether each plaintiff sustained a serious injury as a result of the automobileaccident between the parties (Insurance Law § 5102 [d]). The court properly consideredplaintiffs' evidentiary submissions in opposition to the motion. The passing reference in thereport of plaintiffs' expert to an unsubmitted physician report was not improper (see Navedo v Jaime, 32 AD3d788, 789-790 [2006]), likely having no effect on the court's ruling, and the no-fault denial ofbenefits for medical treatment was not the only evidence submitted in opposition (see Korenv Weihs, 201 AD2d 268 [1994]). The detailed tests conducted by plaintiffs' expert wereobjective and he sufficiently set forth his opinion about the cause of plaintiffs' injuries while alsoruling out other causes (cf. Shinn vCatanzaro, 1 AD3d 195, 198 [2003]). Any discrepancies between the assertions in theexpert's affidavits and his office records raise credibility issues that may not be resolved onsummary judgment. The one-year gap in plaintiffs' treatment was adequately explained by theexpert's opinion that further treatment would be palliative (see Pommells v Perez, 4 NY3d 566, 577 [2005]).[*2]
We have considered and rejected appellants' remainingcontentions. Concur—Saxe, J.P., Marlow, Williams, Sweeny and Malone, JJ.