JOSEPH v. FRANCOIS

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Wilman JOSEPH, respondent, v. Donne I. FRANCOIS, et al., appellants, et al., defendants.

Decided: February 20, 2013

PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ. Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn, N.Y. (Stacy R. Seldin of counsel), for appellants. Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Melissa C. Ingrassia of counsel), for respondent. Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel), for defendants Richard Ian Muirhead and Monica Mowatt.

In an action to recover damages for personal injuries, the defendants Donne I. Francois and Gertho Arnault Jean appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated June 19, 2012, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the appellants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). However, in opposition thereto, the plaintiff raised a triable issue of fact. The plaintiff submitted, inter alia, the affirmation of a surgeon who performed arthoscopic surgery on his left shoulder approximately 11 weeks after the accident, the post-operative report, as well the results of computerized diagnostic range-of-motion testing. Under the circumstances of this case, this evidence was sufficient to raise a triable issue of fact regarding whether the plaintiff suffered a significant limitation of body function or system which was causally related to the motor vehicle accident (see Pakeman v. Karekezia, 98 A.D.3d 840, 950 N.Y.S.2d 378; Williams v. Perez, 92 A.D.3d 528, 938 N.Y.S.2d 536; Yuen v. Arka Memory Cab Corp., 80 A.D.3d 481, 915 N.Y.S.2d 529). Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them (see Insurance Law § 5102[d]; see also Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424).

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