Evidence of Tendon and Rotator Cuff Tears Present Triable Issue of Fact Relating to “Serious Injury” in Car Accident Case

In Steele v. Santana¬†(App Div. 1st Dept. 2/19/15), a personal injury injury car accident case, the Appellate Division, First Department reversed the lower court’s determination that plaintiff did not suffer a “serious injury” within the meaning of section 5102(d) of the New York Insurance Law.

In this case, plaintiff alleges that she suffered injuries to her right shoulder and was unable to work for three months as a result of an accident in which she was knocked from her bicycle by defendants’ motor vehicle.

As to the “permanent consequential” and “significant limitation” categories of “serious injury”, the court held:

Defendants made a prima facie showing that plaintiff did not sustain permanent consequential or significant limitation injuries to her right shoulder as a result of the accident, by submitting the affirmed reports of an orthopedic surgeon and radiologist. The orthopedic surgeon found full range of motion in plaintiff’s right shoulder, and the radiologist concluded that plaintiff’s injuries were degenerative in nature.

In opposition, plaintiff raised a triable issue of fact. She submitted an affirmation of her orthopedic surgeon, who averred that he reviewed the MRI of the shoulder, which showed a tear to her tendon, and that during surgery he visualized a tear in plaintiff’s rotator cuff, which he attributed to the accident.

As to the “90/180” category, the court held:

Defendants failed to meet their initial burden of establishing, prima facie, the absence of a 90/180-day injury. The examinations by defendants’ physicians took place well after the relevant 180-day period, they did not opine about plaintiff’s condition during that period, and defendants submitted no other evidence refuting plaintiff’s claim that, as a result of her injuries, she did was unable to return to work for three months following the accident.