| Steinbergin v Ali |
| 2012 NY Slip Op 07075 [99 AD3d 609] |
| October 23, 2012 |
| Appellate Division, First Department |
| Vance Steinbergin, Respondent, v Safda Ali et al.,Appellants. |
—[*1] Joelson & Rochkind, New York (Geofrey Liu of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered November 25, 2011,which denied defendants' motion for summary judgment dismissing the complaint on the groundthat plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, the motion granted to the extent of dismissing plaintiff's"permanent consequential limitation" and "significant limitation" claims, and otherwise affirmed,without costs.
Defendants met their prima facie burden of demonstrating that plaintiff did not suffer apermanent right shoulder injury by submitting the affirmation of an orthopedist who found that itdemonstrated a full range of motion in every plane except for one, comparing plaintiff's values tonormal (see Vega v MTA Bus Co.,96 AD3d 506, 507 [1st Dept 2012]; Spencer v Golden Eagle, Inc., 82 AD3d 589, 590-591 [1st Dept2011]). The minor diminution in a single plane was not significant enough to constitute a seriousinjury (see Canelo v Genolg Tr.,Inc., 82 AD3d 584 [1st Dept 2011]; Sone v Qamar, 68 AD3d 566 [1st Dept 2009]).
Plaintiff failed to raise an issue of fact in opposition. His orthopedic surgeon found, at twofollow-up visits, that plaintiff's right shoulder had "excellent range of motion" after he conductedarthroscopic surgery upon it, and no other evidence of recent limitation was offered (seeOberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]; Dufel v Green, 84 NY2d795, 798 [1995]). In any event, plaintiff concedes that he did not sustain a serious injury underthe "permanent consequential" and "significant limitation" categories of Insurance Law §5102 (d).
However, defendants failed to meet their prima facie burden as to plaintiff's 90/180-dayclaim. Their expert did not examine plaintiff until almost four years after the accident, and,therefore, could not speak to plaintiff's condition during the relevant period (see Quinones v Ksieniewicz, 80 AD3d506, 506-507 [1st Dept 2011]). In any event, plaintiff submitted the affirmation of hisorthopedic surgeon, who treated him on multiple occasions during the relevant period, and foundthat he was disabled. Viewing the evidence in a light most favorable to plaintiff, as we must atthis procedural posture (see Cruz vRivera, 94 AD3d 576 [1st Dept 2012]), and considering it in conjunction with plaintiff'stestimony that he did not return to work for about two years after the accident, was confined tobed for about three months, and was [*2]confined to home forabout a year and a half, plaintiff raised an issue of fact in opposition (see Gaddy v Eyler,79 NY2d 955, 958 [1992]; Alexandre vDweck, 44 AD3d 597 [2d Dept 2007]). Concur—Tom, J.P., Andrias, Saxe,DeGrasse and Manzanet-Daniels, JJ.