| Baez v Boyd |
| 2011 NY Slip Op 09029 [90 AD3d 524] |
| Dcmbr 15, 2011 |
| Appellate Division, First Department |
| Tirson Baez, an Infant, by His Mother and Natural Guardian, SantaBaez, et al., Appellants, v May H. Boyd et al., Respondents. |
—[*1] Crisci, Weiser & Huenke, New York (Joy R. Simon of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered September 28, 2010,which, to the extent appealed from, granted defendants' motion for summary judgmentdismissing the complaint based on the failure to establish a "serious injury" within the meaningof Insurance Law § 5102 (d), unanimously reversed, on the law, without costs, and themotion denied.
Defendants made a prima facie showing of entitlement to judgment as a matter of law bysubmitting the affirmed reports of their medical experts. Their orthopedic expert reported rangesof motion for the subject ankle and foot, compared them to the norm, found that plaintiff had norange-of-motion limitations, and concluded that his injuries had resolved (see Glover v Capres Contr. Corp., 61AD3d 549, 549 [2009]). Their other physician reviewed the X rays and MRIs of the subjectareas and found that the infant plaintiff had sustained no fracture.
Plaintiffs, however, raised a triable issue of fact by submitting the affirmed report of theinfant plaintiff's treating orthopedist, who affirmed that his review of the infant plaintiff's MRIfilms revealed a nondisplaced fracture of the calcaneus (heel bone) and a presumed Salter-HarrisI fracture of the distal fibula. A fracture, by definition, constitutes a "serious injury" under thestatute (Insurance Law § 5102 [d]; Elias v Mahlah, 58 AD3d 434, 434-435 [2009]). Although theequivocal finding of a "presumed" Salter-Harris I fracture, standing alone, may not satisfy theserious injury threshold (see Glover, 61 AD3d at 550), if the trier of fact determines thata serious injury has been sustained, it may award damages for all injuries causally related to theaccident, even those that do not meet the threshold (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d548, 549 [2010]). Concur—Tom, J.P., Friedman, Freedman, Richter andManzanet-Daniels, JJ.