CHARLIE v. Henry Contreras, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Fernando CHARLIE, Plaintiff-Appellant, v. Carlos GUERRERO, Defendant, Henry Contreras, et al., Defendants-Respondents.

Decided: March 26, 2009

MAZZARELLI, J.P., MOSKOWITZ, RENWICK, FREEDMAN, JJ. Arnold E. DiJoseph, III, New York, for appellant. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered August 27, 2007, which granted the motion by defendants Contreras and Jimenez for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated as against these defendants.

In opposition to the motion, plaintiff raised a triable issue of fact as to serious injury of a nondegenerative nature by reason of a permanent limitation of the use of a body member as a consequence of this accident (Insurance Law § 5102[d] ).  Objective evidence of this limitation was presented in the form of an affidavit by plaintiff's orthopaedic surgeon that plaintiff's right shoulder range of motion remained “limited and/or restricted” even after corrective surgery. Specifically, significant restrictions were noted in both the forward flexion and abduction of the shoulder, as well as the internal and external rotation of the arm.   Plaintiff's surgeon concluded that this significant limitation of the use and range of motion in the right shoulder would be permanent.   Therefore, despite plaintiff's failure to meet the 90/180-day test of curtailment of activities, his claim of serious injury did raise a triable issue under the statute's test of a “permanent consequential limitation of use of a body ․ member” (see generally Prestol v. McKissock, 50 A.D.3d 600, 856 N.Y.S.2d 598 [2008];  Rienzo v. La Greco, 11 A.D.3d 1038, 784 N.Y.S.2d 743 [2004] ).