DEFENSE MOTION FOR SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD DENIED BECAUSE IT MISSES AN INJURY

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Linnete Martinez v. Yi Zhong Chen

Date: Jan. 24, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION DENIED; DEFENSE DOCTORS OVERLOOKED SOME OF ACCIDENT VICTIM'S INJURIES(Posted by Brooklyn accident attorney Gary E. Rosenberg on Jan 30, 2012)

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated September 29, 2010, which granted the motion of the defendant Yi Zhong Chen and the separate motion of the defendant Jasmine Romero for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motions for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

The defendant Jasmine Romero failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) as a result of the subject accident (see Insurance Law Sec. 5102 [d]; Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 955-956, 582 N.Y.S.2d 990, 591 N.E.2d 1176). On her motion for summary judgment, Romero did not address the injuries to the plaintiff's left ankle alleged in the plaintiff's bill of particulars, and did not submit a report from any physician who examined the plaintiff's left ankle (see Bitterman v. Dennis, 78 A.D.3d 627, 909 N.Y.S.2d 672; McMillian v. Naparano, 61 A.D.3d 943, 879 N.Y.S.2d 152; Lopez v. Felton, 60 A.D.3d 822, 875 N.Y.S.2d 550; O'Neal v. Bronopolsky, 41 A.D.3d 452, 835 N.Y.S.2d 910). Since Romero did not sustain her prima facie burden, the Supreme Court should have denied her motion regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Kharzis v. PV Holding Corp., 78 A.D.3d 1122, 1123, 912 N.Y.S.2d 114; Kelly v. County of Suffolk, 62 A.D.3d 837, 878 N.Y.S.2d 636).

In support of his separate motion for summary judgment, the defendant Yi Zhong Chen (hereinafter Chen) sustained his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 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 at 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). Chen made a prima facie showing, through the affirmed reports of his examining orthopedist and neurologist, that the injuries the plaintiff allegedly sustained to the lumbar region of her spine, her left knee, and her left ankle did not constitute a serious injury within the meaning of Insurance Law Sec. 5102(d) (see McKenna v. Williams, 89 A.D.3d 698, 931 N.Y.S.2d 892; Dunbar v. Prahovo Taxi, Inc., 84 A.D.3d 862, 863, 921 N.Y.S.2d 911; Estaba v. Quow, 74 A.D.3d 734, 902 N.Y.S.2d 155; Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180; Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275), and, in any event, were not caused by the subject accident (see Carballo v. Pacheco, 85 A.D.3d 703, 924 N.Y.S.2d 828; Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424). However, in opposition, the plaintiff submitted, inter alia, the affirmed report of her treating specialist in physical medicine and rehabilitation, which concluded that she had suffered permanent injuries to the lumbar region of her spine resulting in significant range‑of‑motion limitations. The plaintiff's submissions were sufficient to raise a triable issue of fact as to whether she sustained a serious injury under the permanent consequential limitation of use or the significant limitation of use categories of Insurance Law Sec. 5102(d), and as to whether those injuries were caused by the subject accident (see Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d 424; Tudor v. Yetman, 88 A.D.3d 870, 931 N.Y.S.2d 512). Accordingly, the Supreme Court should have also denied Chen's motion for summary judgment dismissing the complaint insofar as asserted against him.

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