| Njie v Thompson |
| 2012 NY Slip Op 06564 [99 AD3d 421] |
| October 2, 2012 |
| Appellate Division, First Department |
| Adama Njie, Appellant, v Larry S. Thompson,Respondent. |
—[*1] Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered August 26, 2011,which granted defendant's motion for summary judgment dismissing plaintiff's complaint, basedon the failure to establish a serious injury within the meaning of Insurance Law § 5102 (d),unanimously reversed, on the law, without costs, and the motion denied.
Defendant made a prima facie showing of entitlement to summary judgment as to plaintiff'sclaims of "significant limitation of use" of his right shoulder (Insurance Law § 5102 [d];see Spencer v Golden Eagle, Inc.,82 AD3d 589, 590 [1st Dept 2011]). Defendant submitted an expert medical report findingnormal ranges of motion, as well as the report of a radiologist who opined that the MRI ofplaintiff's shoulder revealed no abnormalities.
In opposition, plaintiff raised a triable issue of fact, since his treating physicians found a tearin his right shoulder (see Duran vKabir, 93 AD3d 566, 567 [1st Dept 2012]; Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [1st Dept 2010]),and recent range of motion limitations in his right shoulder (see Jacobs v Rolon, 76 AD3d 905 [1st Dept 2010]).
Since the Court of Appeals rejected "a rule that would make contemporaneous quantitativemeasurements a prerequisite to recovery," there was no requirement that the treating physicianset forth any objective test that would have been used at that time (see Perl v Meher, 18 NY3d 208,218 [2011]). Dr. Cortijo's report of an examination the day after plaintiff's accident establishedthe requisite causation (id. at 217-218 ["a contemporaneous doctor's report is importantto proof of causation"] [emphasis omitted]); plaintiff was not required to submit evidence of anyquantified range of motion testing performed at that time (see Biascochea v Boves, 93 AD3d 548, 548-549 [1st Dept 2012]).[*2]
We note that if plaintiff prevails at trial on his seriousinjury claims, he will be entitled to recovery also on his non-serious injuries caused by theaccident (see Linton v Nawaz, 14NY3d 821 [2010]; Rubin v SMSTaxi Corp., 71 AD3d 548 [2010]). Concur—Friedman, J.P., Acosta, Renwick,Richter and Abdus-Salaam, JJ.