Robert Whitaker, Plaintiff-Appellant, v. Sambaly Soumano, et al., Defendants-Respondents. (2011)

Baker McEvoy Morrissey & Moskovits, P.C., New York (Stacey R. Seldin of counsel), for Sambaly Soumano and Beech Trans Corp., respondents.

Law Offices of Frank J. Laurino, Bethpage (Calvin Weintraub of counsel), for Prince Yates, respondent.

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Order, Supreme Court, New York County (Paul Wooten, J.), entered September 24, 2009, which granted defendants' motion for summary judgment dismissing the complaint for lack of serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendants established prima facie that plaintiff did not sustain a serious injury as a result of the accident by submitting the reports of doctors who concluded, based on independent medical examinations, that plaintiff's range of motion was normal (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345 [2002] ).   However, plaintiff submitted sufficient objective medical evidence to raise factual issues as to the “significant limitation” or “permanent consequential limitation” categories of serious injury (Insurance Law § 5102 [d] ).  The doctor who treated him commencing on the day after the accident affirmed that he noted pain and limited range of motion in plaintiff's right shoulder and lumbar spine on his initial examination, 83% limitation in range of motion three months after the accident, and 52% nearly two years after the accident.   In addition, the doctor concluded that plaintiff was unlikely to recover fully, thus providing both quantitative and qualitative assessments of plaintiff's condition sufficient to create triable issues of fact (see id.).

Plaintiff failed to raise an issue of fact as to his claim of a 90/180-day injury.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK