Buck v. Fulton City School District

Appeal from an order of Supreme Court, Oswego County (Nicholson, J.), entered March 21, 2002, which denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries she allegedly sustained when, as a high school student, she was repeatedly exposed to sulfur in an earth science classroom. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Although defendant submitted an affidavit from an allergy and asthma “consultant” who opined that plaintiffs fibromyalgia could not have been precipitated by the repeated exposure to sulfur, plaintiff raised a triable issue of fact by submitting the affidavit of her treating neurologist, who opined “with a reasonable degree of medical certainty” that the exposure did, indeed, precipitate her disease. “[D]ifferenees of opinion among the medical experts with respect to the nature, cause and extent of plaintiffs injuries raise issues of credibility that must be resolved by a jury” (Pagels v P.V.S. Chems., 266 AD2d 819, 819 [1999]). Present — Wisner, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.