MANGANO v. SHERMAN (2000)

Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint on the ground that Donna L. Mangano (plaintiff) did not sustain a serious injury (see, Insurance Law § 5102[d] ) in the motor vehicle accident at issue herein.   Although defendants met their initial burden, plaintiffs raised a triable issue of fact by submitting the affidavit of an orthopedic surgeon who had treated plaintiff for over 2 1/212 years following the accident.   He opined to a reasonable degree of medical certainty that plaintiff had suffered permanent limitations including, inter alia, a 20% to 30% loss of flexion, rotation and extension in her neck, a 20 degree loss of full elevation of the right shoulder, permanent winging of the right scapula with permanent nerve damage and palsy to the long thoracic nerve and a 20% loss of use of the right shoulder.   That evidence is sufficient to raise an issue of fact whether plaintiff sustained a serious injury (see, Rodriguez v. Duggan, 266 A.D.2d 859, 697 N.Y.S.2d 803;  Nathanson v. David, 244 A.D.2d 930, 665 N.Y.S.2d 148;  Jablonski v. Bolt, 213 A.D.2d 982, 624 N.Y.S.2d 319).

Judgment unanimously reversed on the law without costs, motion denied and complaint reinstated.

MEMORANDUM: