| Charlie v Guerrero |
| 2009 NY Slip Op 02302 [60 AD3d 570] |
| March 26, 2009 |
| Appellate Division, First Department |
| Fernando Charlie, Appellant, v Carlos Guerrero,Defendant, and Henry Contreras et al., Respondents. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), forrespondents.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered August 27, 2007,which granted the motion by defendants Contreras and Jimenez for summary judgmentdismissing the complaint, unanimously reversed, on the law, without costs, the motion deniedand the complaint reinstated as against these defendants.
In opposition to the motion, plaintiff raised a triable issue of fact as to serious injury of anondegenerative nature by reason of a permanent limitation of the use of a body member as aconsequence of this accident (Insurance Law § 5102 [d]). Objective evidence of thislimitation was presented in the form of an affidavit by plaintiff's orthopaedic surgeon thatplaintiff's right shoulder range of motion remained "limited and/or restricted" even aftercorrective surgery. Specifically, significant restrictions were noted in both the forward flexionand abduction of the shoulder, as well as the internal and external rotation of the arm. Plaintiff'ssurgeon concluded that this significant limitation of the use and range of motion in the rightshoulder would be permanent. Therefore, despite plaintiff's failure to meet the 90/180-day test ofcurtailment of activities, his claim of serious injury did raise a triable issue under the statute's testof a [*2]"permanent consequential limitation of use of a body. . . member" (id.;see generally Prestol v McKissock, 50 AD3d 600 [2008]; Rienzo v La Greco, 11 AD3d1038 [2004]). Concur—Mazzarelli, J.P., Moskowitz, Renwick and Freedman, JJ.