Justice Arlene Bluth
Defendants moved for summary judgment dismissing Burgos' personal injury action. They argued Burgos did not sustain a serious injury as defined in Insurance Law §5012(d), and contended they were not liable for the accident. Burgos cross-moved for summary judgment on the issue of liability. She alleged she sustained personal injuries resulting from an accident when the front of her vehicle was struck by an MTA bus driven by Rembert. Defendants submitted an affirmed medical report of orthopaedist, Dr. Nipper, who claimed he examined Burgos and described her as a 29 year old, left-handed man. The court stated it was not up to the court to assume Nipper's misidentification of Burgos' gender was merely a typographical error, noting it was just as likely that all, or portions of his report, were also erroneous. Thus, it ruled defendants failed to meet their prima facie burden on the serious injury branch of their motion, denying same. Yet, it also denied defendants' motion and Burgos' cross-motion on the issue of liability finding material differences between the parties' respective versions of how the accident occurred. Hence, as there were issues of fact, summary judgment on the issue of liability was denied.
