Myung Soon Kim v Park

[*1] Myung Soon Kim v Park 2014 NY Slip Op 51318(U) Decided on August 20, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 20, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2543 Q C

Myung Soon Kim as Mother and Natural Guardian of HOON KIM, an Infant, Appellant,

against

Yoon K. Park, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered September 24, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action brought by Myung Soon Kim on behalf of her minor son Hoon Kim (plaintiff) to recover for personal injuries he sustained when he was allegedly struck by a vehicle owned and operated by defendant, plaintiff appeals from an order of the Civil Court, which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had not sustained a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the accident.

The evidence which defendant submitted in support of her motion failed to eliminate all issues of fact as to whether plaintiff, a pedestrian, had sustained a serious injury as defined by Insurance Law § 5102 (d). Defendant's examining orthopedist failed to set forth whether objective tests had been performed to support his conclusion that plaintiff had full range of motion in his right ankle (see Orejuela v Francis, 71 AD3d 857 [2010]; Giammalva v Winters, 59 AD3d 595 [2009]; Cedillo v Rivera, 39 AD3d 453 [2007]; Black v Robinson, 305 AD2d 438 [2003]). With respect to plaintiff's lumbar spine, defendant's orthopedist indicated that straight leg raising was negative to 90 degrees in both the seated and supine positions. However, the doctor failed to compare his finding to what is normal (see Shirman v Lawal, 69 AD3d 838 [2010]). With respect to plaintiff's cervical spine, defendant submitted contradictory proof as to whether the condition was caused by the accident in question or degenerative disease (see Black v County of Dutchess, 87 AD3d 1097 [2011]; Dettori v Molzon, 306 AD2d 308 [2003]). Consequently, defendant did not eliminate triable issues of fact as to the cause of plaintiff's alleged injuries to the cervical spine (see Johnston v Peluso, 105 AD3d 1008 [2013]; Rodgers v Duffy, 95 AD3d 864 [2012]).

We further find that the papers presented by defendant failed to adequately address plaintiff's claim, set forth in the bill of particulars, that plaintiff had sustained a medically determined injury or impairment of a nonpermanent nature which prevented him from [*2]performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 days during the 180 days immediately following the subject accident (see Fernandez v Xie Jian Gao, 114 AD3d 637 [2014]; Che Hong Kim v Kossoff, 90 AD3d 969 [2011]). Defendant's orthopedist conducted his examination of plaintiff more than four years after the accident and did not relate his medical findings to this category of serious injury for the period of time immediately following the accident (see Kapeleris v Riordan, 89 AD3d 903 [2011]). While defendant proffered the transcript of plaintiff's testimony at an examination before trial, plaintiff's testimony did not satisfy defendant's burden of proving that plaintiff had sustained no injuries or impairments under the 90/180-day category of Insurance Law § 5102 (d) (see Katechis v Batista, 91 AD3d 912 [2012]; Ramkissoon v Ramkissoon, 39 Misc 3d 151[A], 2013 NY Slip Op 50980[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Aujour v Singh, 90 AD3d 686 [2011]).

In view of the foregoing, we need not reach the parties' remaining contentions.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: August 20, 2014