| Young Chool Yoo v Rui Dong Wang |
| 2011 NY Slip Op 07631 [88 AD3d 991] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Young Chool Yoo, Appellant, v Rui Dong Wang,Respondent. |
—[*1] Mendolia & Stenz, P.C. (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S.Neumann, Jr.], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Lebowitz, J.), dated August 2, 2010, which granted thatbranch of the defendant's motion which was for summary judgment dismissing the complaint onthe ground that he did not sustain a serious injury within the meaning of Insurance Law §5102 (d).
Ordered that the order is reversed, on the law, with costs, and that branch of the defendant'smotion which was for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) isdenied.
The Supreme Court erred in determining that the plaintiff did not plead any injuries withrespect to his left shoulder in his bill of particulars. The plaintiff clearly alleged in his bill ofparticulars that he sustained hypertrophic acromioclavicular joint changes with encroachmentupon the, supraspinatus tendon, which is found in the shoulder. Moreover, the plaintiff testifiedat his deposition that he injured his left shoulder as a result of the subject accident, and thedefendant's examining orthopedic surgeon examined this region of the plaintiff's body when heexamined the plaintiff on December 17, 2009, and reviewed the magnetic resonance imaging(hereinafter MRI) report of the plaintiff's "AC joint" as part of his preparation to examine theplaintiff. Therefore, the defendant cannot claim surprise in this case concerning the alleged injuryto the plaintiff's left shoulder, since the defendant's own expert examined that region of theplaintiff's body.
The Supreme Court properly determined that the defendant met his prima facie burden ofshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; see also Giraldo v Mandanici, 24AD3d 419 [2005]).
In opposition, however, the plaintiff raised a triable issue of fact through the affirmation ofDr. Benjamin Chang, the plaintiff's treating physician. In his affirmation, Dr. Chang concluded,based on his contemporaneous and most recent examinations of the plaintiff, which revealedsignificant limitations in the lumbar regions of the plaintiff's spine and left shoulder, that theplaintiff's injuries were permanent. Dr. Chang opined that the plaintiff sustained a permanentconsequential limitation of use and/or a significant limitation of use of those areas as a result ofthe subject accident. Thus, Dr. Chang's findings concerning the plaintiff were sufficient to raise atriable [*2]issue of fact as to whether, as a result of the subjectaccident, the plaintiff sustained a serious injury to the lumbar region of his spine and/or leftshoulder under the permanent consequential limitation of use and/or the significant limitation ofuse categories of Insurance Law § 5102 (d) (see Dixon v Fuller, 79 AD3d 1094 [2010]; Gussack v McCoy, 72 AD3d 644[2010]).
Contrary to the defendant's contention, the plaintiff adequately explained the cessation in histreatment in this case through his affidavit and the affirmation of Dr. Chang (see Pommells v Perez, 4 NY3d566, 574 [2005]; Khaimov v Jing Fan, 87 AD3d 1055 [2011]).
The defendant's contention that the plaintiff failed to address the issue of degeneration in thelumbar region of his spine raised by the defendant's radiology expert, Dr. Sondra Pfeffer, also iswithout merit. Dr. Chang concluded in his affirmation, based upon his review of the MRI of thelumbar region of the plaintiff's spine, as well as his examinations of the plaintiff, that theplaintiff's injuries were caused by the subject accident, and were not caused by degenerativedisease. This was sufficient to address the issue of degeneration raised by the defendant's expert(see Tai Ho Kang v Young SunCho, 74 AD3d 1328, 1330 [2010]; Whitehead v Olsen, 70 AD3d 678 [2010]; Modeste v Mercier, 67 AD3d 871[2009]). Accordingly, that branch of the defendant's motion which was for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d) should have been denied.
The plaintiff's contention concerning that branch of the defendant's motion which was forsummary judgment dismissing the complaint on the ground that the defendant did not breach anyduty to the plaintiff is not properly before this Court. That branch of the motion was notaddressed by the Supreme Court and, thus, remains pending and undecided (see Katz vKatz, 68 AD2d 536, 542-543 [1979]). Mastro, J.P., Angiolillo, Belen and Lott, JJ., concur.