| Jang Hwan An v Parra |
| 2011 NY Slip Op 09528 [90 AD3d 574] |
| Dcmbr 27, 2011 |
| Appellate Division, First Department |
| Jang Hwan An et al., Appellants, v Carlos A. Parra et al.,Respondents. |
—[*1] Vincent P. Crisci, New York (David Weiser of counsel), for respondents.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 21, 2010, whichgranted defendants' motion for summary judgment dismissing the complaint on the ground thatplaintiffs did not suffer a "serious injury" within the meaning of Insurance Law § 5102 (d),unanimously modified, on the law, to the extent of reinstating the claims for permanent loss ofuse of a body organ, member, function or systems, permanent consequential limitation of use of abody function or system, and significant limitation of use of a body function or system, andotherwise, affirmed, without costs.
Defendants failed to demonstrate their entitlement to judgment as a matter of law onplaintiffs' claim to recover for serious injury under Insurance Law § 5102. In opposition todefendant's motion, plaintiffs submitted, among other things, the affidavits of their treatingchiropractor, who averred that both plaintiffs had specified decreased ranges of motion in theircervical and lumbar spines, plaintiff Jang Hwan's right knee and plaintiff Jung Sook's rightshoulder. The chiropractor averred that plaintiffs' injuries were sustained as result of the subjectaccident, and not the result of degenerative disease.
Jang Hwan submitted an affirmed report of the MRI results of his right knee, finding that hesuffered multiple meniscal tears, joint effusion and a bone cyst or avascular neurosis. Jung Sooksubmitted an affirmed MRI report of her right shoulder, showing tears of the supraspinatus andsubcapularis tendons. Such medical evidence, which contradicts defendants' medical evidence ofa degenerative disease, raises an issue of fact as to the existence and causation of plaintiffs'injuries (see Suazo v Brown, 88AD3d 602 [2011]; Chakrani v BeckCab Corp., 82 AD3d 436 [2011]).
Plaintiffs, however, have failed to raise an issue of fact concerning their ability to performsubstantially all of their daily activities for at least 90 of the first 180 days following the accident,inasmuch as both plaintiffs testified that they [*2]were able toreturn to work within 90 days following the accident (see Prestol v McKissock, 50 AD3d 600 [2008]).Concur—Mazzarelli, J.P., Sweeny, Moskowitz, Acosta and Abdus-Salaam, JJ.