John Incardona et al., Appellants, v. William M. Seavers, Respondent

John Incardona et al., Appellants, v William M. Seavers, Respondent. [614 NYS2d 908] [MAJORITY] In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Beisner, J.), entered October 13, 1992, which granted the defendant’s motion for summary judgment dismissing the complaint, and denied the plaintiffs’ cross motion for summary judgment in their favor. Ordered that the order is modified, on the law, by deleting the provision thereof which granted the defendant’s motion for summary judgment dismissing the complaint, and substituting therefor a provision denying the motion; and as so modified, the order is affirmed, with costs to the plaintiffs. The Supreme Court erred in finding that the plaintiffs’ medical evidence was insufficient to defeat the defendant’s motion for summary judgment (see, Cowley v Crocker, 186 AD2d 939; Pagano v Kingsbury, 182 AD2d 268). However, the court correctly denied the plaintiffs’ cross motion for summary judgment. The defendant submitted the affirmation of an examining physician to the effect that John Incardona’s injuries were only "mild” and therefore not "serious” within the meaning of Insurance Law § 5102 (d), thereby raising a triable issue of fact as to whether he sustained a "serious injury”. Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.