June v. Sheikh Ali Akhtar

62 A.D.3d 427, 878 N.Y.S.2d 59

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 2009
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered on or about March 20, 2008, which denied defendants’ motion for summary judgment dismissing the complaint for lack of a serious injury as required by Insurance Law § 5102 (d), affirmed, without costs.

Defendants’ examining physician noted limitations in range of motion with respect to plaintiff June’s left knee and lumbar spine and with respect to plaintiff Smalls’ right shoulder and cervical and lumbar spines, and plaintiffs’ MRI results showed disc herniations and bulges, a tear to June’s left meniscus, and a labral tear in Smalls’ right shoulder. The cited impairments are consistent with plaintiffs’ description that June hit his left knee against the dashboard, and that Smalls’ upper body hit the steering wheel, when defendants’ car collided with them, and the doctor’s notes and the MRI results support a finding of serious injury within the meaning of Insurance Law § 5102 (see Guerrero v Bernstein, 57 AD3d 845 [2008]; Noriega v Sauerhaft, 5 AD3d 121, 122 [2004]).

In the circumstances presented, particularly the fact that plaintiffs were relatively young (June was 31 years old and Smalls 25 at the time of the accident), defendants’ claim that the abnormal MRI findings and restricted ranges of motion were due to degenerative changes unrelated to the accident requires further elaboration to satisfy defendants’ burden on the motion, to establish prima facie entitlement to summary judgment (see Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Concur—Gonzalez, P.J., Moskowitz, DeGrasse and Freedman, JJ.