De La Rosa v. Gomez

Order, Supreme Court, New York County (George J. Silver, J.), entered August 17, 2010, which, insofar as appealed from as limited by their briefs, denied the motion by defendants Hidalgo and San for summary judgment dismissing plaintiff’s claims under the permanent consequential and significant limitation categories of serious injury under Insurance Law § 5102 (d), unanimously affirmed, without costs. Defendants established prima facie entitlement to summary judgment as a matter of law with respect to whether plaintiff 666 sustained a “permanent consequential limitation of use of a body organ or member,” or a “significant limitation of use of a body function or system” within the meaning of Insurance Law § 5102 (d) by submitting the reports of two physicians who examined the plaintiff and found full range of motion in her cervical and lumbar spine, her right shoulder, hip, and knee (Yagi v Corbin, 44 AD3d 440 [2007]). . In opposition to defendants’ motion, however, plaintiff raised an issue of fact with respect to the aforementioned categories by presenting “contemporaneous and qualitative medical evidence regarding alleged range-of-motion limitations causally related to the accident” (Blackmon v Dinstuhl, 27 AD3d 241, 242 [2006]), and a recent medical examination evincing the same (Bent v Jackson, 15 AD3d 46, 48 [2005]). In particular, plaintiff submitted a sworn report from Jean Daniel Francois, M.D., a neurologist who examined plaintiff both days after the accident and again recently in response to defendants’ motion. Employing objective range of motion testing at both examinations, Francois concluded that plaintiff, as a result of the accident, suffered a permanent disability to her cervical and lumbar spine. Defendants’ motion for summary judgment was thus properly denied (Linton v Nawaz, 62 AD3d 434, 439 [2009], affd 14 NY3d 821 [2010]; Toure v Avis Rent A Car Sys., 98 NY2d 345, 354-355 [2002]). Concur — Andrias, J.E, Friedman, Catterson, Moskowitz and Román, JJ.