| Djetoumani v Transit, Inc. |
| 2008 NY Slip Op 03580 [50 AD3d 944] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Diabate Djetoumani, Respondent, et al.,Plaintiffs, v Transit, Inc., et al., Appellants. |
—[*1] Budin, Reisman, Kupferberg, New York, N.Y. (Scott B. Schwartz, PLLC, of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Kings County (Jacobson, J.), dated June 19, 2007, which deniedtheir motion for summary judgment dismissing the complaint insofar as asserted by the plaintiffDiabate Djetoumani against them on the ground that he did not sustain a serious injury within themeaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The defendants established their entitlement to summary judgment dismissing the complaintinsofar as asserted by the plaintiff Diabate Djetoumani by demonstrating through the reports oftheir examining physicians that Djetoumani did not sustain a serious injury within the meaning ofInsurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent ACar Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Inopposition, Djetoumani raised a triable issue of fact as to whether he sustained a serious injury onthe basis of the affirmations of his treating and examining physicians demonstrating that hesustained, among other things, a torn rotator cuff as a result of the accident, and that thoseinjuries resulted in a permanent consequential and/or a significant limitation of use of his rightshoulder as a result of the subject accident. Although the initial physical examination byDjetoumani's treating physician did not reveal a limitation in the range of motion of his rightshoulder, magnetic resonance imaging, performed two weeks later, demonstrated a rotator cufftear, a tear of the anterior glenoid labrum, and a partial tear of the biceps [*2]tendon. Magnetic resonance imaging reports showing such tears arenot evidence of serious injury in the absence of objective evidence of the extent of the allegedphysical limitations resulting from the injuries, and the duration of these tears does not, alone,establish a serious injury (seeNannarone v Ott, 41 AD3d 441, 442 [2007]; Yakubov v CG Trans Corp., 30 AD3d 509, 510 [2006]; Kearse v New York City Tr. Auth., 16AD3d 45, 49 [2005]). Here, however, the requisite medical finding was provided by theaffirmation and report of Louis Rose, Djetoumani's treating orthopedist, which set forthrange-of-motion findings with respect to Djetoumani's right shoulder.
Contrary to the defendants' argument, the failure of Dr. Rose to compare his range-of-motionfindings to the norm does not, on the record presented here, preclude a finding of a triable issueof fact. In general, in the absence of an assertion of the normal range of motion, an expert'sfinding as to the plaintiff's range of motion is insufficient to establish the significant orconsequential limitation of use necessary to sustain a claim (see Toure v Avis Rent A CarSys., 98 NY2d at 353) because it requires the court to speculate as to the meaning of thephysical finding (see Nociforo v Penna,42 AD3d 514, 515 [2007]; Freyv Fedorciuc, 36 AD3d 587, 588 [2007]; Powell v Alade, 31 AD3d 523 [2006]; Manceri v Bowe, 19 AD3d 462,463 [2005]). Here, however, no such speculation is necessary because the applicable normalranges of motion were set forth in the reports of the defendants' examining physicians that weresubmitted in support of the motion. A statement by an expert that is put forward by a party inlitigation constitutes an informal judicial admission (see Chock Full O'Nuts Corp. v NRP LLC I, 47 AD3d 189 [2007];Matter of City of New York, 73 AD2d 932, 933 [1980]), that is admissible against,although not binding upon, the party that submitted it (see Matter of Union Indem. Ins. Co. ofN.Y., 89 NY2d 94, 103 [1996]; Stauber v Brookhaven Natl. Lab., 256 AD2d 570,570-571 [1998]; Prince, Richardson on Evidence § 8-219, at 529-530 [Farrell 11th ed];Fisch, New York Evidence § 803, at 475-476 [2d ed]). Thus, just as a nonmoving plaintiffin a serious injury case may rely upon the unsworn report of the plaintiff's treating physician onceit has been submitted by the moving defendant (see Raso v Statewide Auto Auction, 262AD2d 387, 387-388 [1999]; Vignola v Varrichio, 243 AD2d 464 [1997]; Pagano vKingsbury, 182 AD2d 268, 271 [1992]), a nonmoving plaintiff may rely upon the statementby the moving defendant's expert of the applicable normal range of motion.
Finally, contrary to the defendants' contentions, there was no lengthy gap in Djetoumani'streatment (see Pommells v Perez, 4NY3d 566, 574 [2005]; Seecoomarv Ly, 43 AD3d 900, 901 [2007]). Spolzino, J.P., Santucci, Dillon and Balkin, JJ.,concur.