Baez v Boyd

Baez v Boyd 2011 NY Slip Op 09029 Decided on December 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2011
Tom, J.P., Friedman, Freedman, Richter, Manzanet-Daniels, JJ.
6360 350271/09

[*1]Tirson Baez, etc., et al., Plaintiffs-Appellants,

v

May H. Boyd, et al., Defendants-Respondents.




Trolman, Glaser & Lichtman, P.C., New York (Michael T.
Altman of counsel), for appellants.
Crisci, Weiser & Huenke, New York (Joy R. Simon of
counsel), for respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 28, 2010, which, to the extent appealed from, granted defendants' motion for summary judgment dismissing the complaint based on the failure to establish a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the motion denied.

Defendants made a prima facie showing of entitlement to judgment as a matter of law by submitting the affirmed reports of their medical experts. Their orthopedic expert reported ranges of motion for the subject ankle and foot, compared them to the norm, found that plaintiff had no range-of-motion limitations, and concluded that his injuries had resolved (see Glover v Capres Contr. Corp., 61 AD3d 549, 549 [2009]). Their other physician reviewed the X rays and MRIs of the subject areas and found that the infant plaintiff had sustained no fracture.

Plaintiffs, however, raised a triable issue of fact by submitting the affirmed report of the infant plaintiff's treating orthopedist, who affirmed that his review of the infant plaintiff's MRI films revealed a nondisplaced fracture of the calcaneus (heel bone) and a presumed Salter-Harris I fracture of the distal fibula. A fracture, by definition, constitutes a "serious injury" under the statute (Insurance Law § 5102[d]; Elias v Mahlah, 58 AD3d 434, 434-435 [2009]). Although the equivocal finding of a "presumed" Salter-Harris I fracture, standing alone, may not satisfy the serious injury threshold (see Glover, 61 AD3d at 550), if the trier of fact determines that a serious [*2]injury has been sustained, it may award damages for all injuries causally related to the accident, even those that do not meet the threshold (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK