In Kang v. Almanzar, the Appellate Division, First Department recently modified the trial court’s grant of summary judgment to defendant on the issue of whether plaintiff suffered a “serious injury” to her right shoulder under the “significant limitation in use” category set forth in Insurance Law § 5102(d).
Defendants made a prima facie showing that plaintiff did not suffer a serious injury to her cervical and lumbar spine or right shoulder. Defendants submitted an orthopedic surgeon’s affirmation finding normal range of motion in each part, and reports of expert radiologists stating that the MRIs of plaintiff’s spine showed no disc herniations or bulges and no evidence of traumatic injury, and that the MRI of her right shoulder showed degenerative changes unrelated to the motor vehicle accident.
While plaintiff “failed to preserve her argument that defendants’ expert orthopedist skewed his range-of-motion testing by selecting normal values that were substantially lower than those used by him in other cases”, without supporting medical evidence, that argument “raises an issue of credibility for the factfinder.”
In response to defendant’s motion,
plaintiff raised an issue of fact as to whether she suffered a significant limitation in the shoulder, by submitting the affirmation of her treating orthopedic surgeon, who found qualitative limitations that persisted for almost two years after the accident, and required arthroscopic surgery to repair, following conservative treatment. The surgeon’s opinion as to causation, based on his examination of plaintiff, his review of her medical records, and his observations of her during surgery, was sufficient to raise an issue of fact.
While “[p]laintiff did not present evidence of permanent or significant limitations to her cervical or lumbar spine … if a jury determines that plaintiff has met the threshold for serious injury [based on her shoulder injury], the jury may award damages for all of plaintiff’s injuries causally related to the accident, even those not meeting the serious injury threshold.”