Norme v. Ajons

57 A.D.3d 749, 870 N.Y.2d 91

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2008
• Status: Published

Opinion

The plaintiff, a pedestrian, was struck by the defendants’ vehicle, and thrown over the car, hitting his right shoulder on the windshield and crashing to the ground. The Supreme Court correctly found that the defendants did not meet their burden of coming forward with sufficient evidence in admissible form to establish, prima facie, that the plaintiff did not sustain a serious injury as a result of the subject accident. The defendants’ medical expert found significant decreases in the range of motion of the plaintiffs right shoulder more than three years after the accident and after the plaintiff underwent arthroscopic surgery to that shoulder, thus revealing the existence of an issue of fact as to the severity and permanence of the plaintiffs injury (see Jenkins v Miled Hacking Corp., 43 AD3d 393 [2007]).

In light of the foregoing, we need not address the adequacy of the affidavit of the plaintiffs physician (see Dzaferovic v Polonia, 36 AD3d 652 [2007]; Coscia v 938 Trading Corp., 283 AD2d 538 [2001]). Fisher, J.E, Florio, Angiolillo, Dickerson and Belen, JJ., concur.