Nelms v. Khokhar

12 A.D.3d 426, 784 N.Y.S.2d 572, 2004 N.Y. App. Div. LEXIS 13376

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated September 4, 2003, which granted the defendant’s motion for summary judgment dismissing the complaint on the ground that the plaintiff Anthony Lawrence Nelms did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

In opposition to the defendant’s establishment of a prima facie case for summary judgment, the physician for the injured plaintiff (hereinafter the plaintiff) submitted an affirmation stating that he had been treating the plaintiff since the date of the accident, and that at his most recent examination of the plaintiff on June 20, 2003, he found certain restrictions in the plaintiffs range of motion. Specifically, the physician reported, inter alia, that at that time, he objectively tested and measured losses in the plaintiffs cervical ranges of motion ranging from 16% to 55%, and losses in the plaintiffs lumbar ranges of motion ranging from 22% to 33%. These decreases in the plaintiffs range of motion as found by the plaintiffs physician in June 2003 were sufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury.

Accordingly, the Supreme Court erred in granting the defendant’s motion for summary judgment. Krausman, J.P., Luciano, Mastro and Lifson, JJ., concur.