Njie v Thompson

Njie v Thompson 2012 NY Slip Op 06564 Decided on October 2, 2012 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 October 2, 2012
Friedman, J.P., Acosta, Renwick, Richter, Abdus-Salaam, JJ.
8162 114265/04

[*1]Adama Njie, Plaintiff-Appellant,

v

Larry S. Thompson, Defendant-Respondent.




Ginsberg & Wolf, P.C., New York (Martin Wolf of counsel),
for appellant.
Cheven, Keely & Hatzis, New York (William B. Stock of
counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered August 26, 2011, which granted defendant's motion for summary judgment dismissing plaintiff's 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.

Defendant made a prima facie showing of entitlement to summary judgment as to plaintiff's claims of "significant limitation of use" of his right shoulder (Insurance Law § 5102[d]; see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590 [1st Dept 2011]). Defendant submitted an expert medical report finding normal ranges of motion, as well as the report of a radiologist who opined that the MRI of plaintiff's shoulder revealed no abnormalities.

In opposition, plaintiff raised a triable issue of fact, since his treating physicians found a tear in his right shoulder (see Duran v Kabir, 93 AD3d 566, 567 [1st Dept 2012], Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [1st Dept 2010]), and recent range of motion limitations in his right shoulder (see Jacobs v Rolon, 76 AD3d 905 [1st Dept 2010]).

Since the Court of Appeals rejected "a rule that would make contemporaneous quantitative measurements a prerequisite to recovery," there was no requirement that the treating physician set forth any objective test that would have been used at that time (see Perl v Meher, 18 NY3d 208, 218 [2011]). Dr. Cortijo's report of an examination the day after plaintiff's accident established the requisite causation (id. At 217-218 ["a contemporaneous doctor's report is important to proof of causation" (emphasis omitted)]); plaintiff was not required to submit evidence of any quantified range of motion testing performed at that time (see Biascochea v Boves, 93 AD3d 548, 548-549 [1st Dept 2012]). [*2]

We note that if plaintiff prevails at trial on his serious injury claims, he will be entitled to recovery also on his non-serious injuries caused by the accident (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548 [2010]).

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

ENTERED: OCTOBER 2, 2012

CLERK