GARNER v. TONG

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

William E. GARNER, Plaintiff-Respondent, v. Francis TONG, Defendant-Appellant.

Decided: March 30, 2006

ANDRIAS, J.P., NARDELLI, WILLIAMS, SWEENY, McGUIRE, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Michael I. Josephs of counsel), for appellant. Law Office of Eric H. Green, New York (Marc Gertler of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered August 4, 2005, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's medical expert's affidavit, in this personal injury automobile accident case, sufficiently established a serious injury as defined in Insurance Law § 5102(d), inasmuch as it was based on quantitative measurements such as the use of an inclinometer to measure range of motion and straight leg testing, and objective medical evidence such as a sworn MRI report (Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002];  Brown v. Achy, 9 A.D.3d 30, 776 N.Y.S.2d 56 [2004] ). The tests showed a 20% limitation in the cervical range and a 25% limitation in the lumbar range.   Plaintiff established, through his own affidavit and his expert's statement, that the injury prevented him from working for six months following the accident.   The expert adequately explained that plaintiff thereafter reduced the frequency of his treatment only because it was not offering him any further benefit.