Jang Hwan An v Parra

Jang Hwan An v Parra 2011 NY Slip Op 09528 Decided on December 27, 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 27, 2011
Mazzarelli, J.P., Sweeny, Moskowitz, Acosta, Abdus-Salaam, JJ.
6103 301551/08

[*1]Jang Hwan An, et al., Plaintiffs-Appellants,

v

Carlos A. Parra, et al., Defendants-Respondents.




Sim & Park, LLP, New York (Sang J. Sim of counsel), for
appellants.
Vincent P. Crisci, New York (David Weiser of counsel), for
respondents.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 21, 2010, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiffs did not suffer a "serious injury" within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to the extent of reinstating the claims for permanent loss of use of a body organ, member, function or systems, permanent consequential limitation of use of a body function or system, and significant limitation of use of a body function or system, and otherwise, affirmed, without costs.

Defendants failed to demonstrate their entitlement to judgment as a matter of law on plaintiffs' claim to recover for serious injury under Insurance Law § 5102. In opposition to defendant's motion, plaintiffs submitted, among other things, the affidavits of their treating chiropractor, who averred that both plaintiffs had specified decreased ranges of motion in their cervical and lumbar spines, plaintiff Jang Hwan's right knee and plaintiff Jung Sook's right shoulder. The chiropractor averred that plaintiffs' injuries were sustained as result of the subject accident, and not the result of degenerative disease.

Jang Hwan submitted an affirmed report of the MRI results of his right knee, finding that he suffered multiple meniscal tears, joint effusion and a bone cyst or avascular neurosis. Jung Sook submitted an affirmed MRI report of her right shoulder, showing tears of the supraspinatus and subcapularis tendons. Such medical evidence, which contradicts defendants' medical evidence of a degenerative disease, raises an issue of fact as to the existence and causation of plaintiffs' injuries (see Suazo v Brown, _AD2d_, 2011 NY Slip Op. 07505 [2011]; Chakrani v Beck Cab Corp., 82 AD3d 436 [2011]).

Plaintiffs, however, have failed to raise an issue of fact concerning their ability to perform substantially all of their daily activities for at least 90 of the first 180 days following the accident, inasmuch as both plaintiffs testified that they [*2]
were able to return to work within 90 days following the accident (see Prestol v McKissock, 50 AD3d 600 [2008]).

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

ENTERED: DECEMBER 27, 2011

CLERK