Majority
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered July 25, 2016, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the claim of serious injury (Insurance Law § 5102 [d]) to the right shoulder, unanimously reversed, on the law, without costs, and the motion denied.
Defendants made a prima facie showing that plaintiff did not sustain a serious injury to her right shoulder by submitting the report of their radiologist, who opined that plaintiff’s
In opposition, plaintiff raised an issue of fact (see Perl v Meher, 18 NY3d 208 , 217-218 [2011]). Contrary to defendants’ contention, plaintiff’s emergency room records reflect contemporaneous complaints of pain, since X rays of the right shoulder were ordered at the time. Plaintiff’s treating physician noted that plaintiff had undergone physical therapy in the months following the accident, and found that she had limited range of motion in her right shoulder. Her orthopedic surgeon observed rotator cuff and superior labral tears during surgery, measured range-of-motion limitations two years after the surgery, and provided a sufficient opinion, based on his treatment of plaintiff, his review of the MRI report, and his observations during surgery, that, although there were degenerative conditions in plaintiff’s shoulder consistent with her age, the tears were causally related to the accident (see Liz v Munoz, 149 AD3d 646 [1st Dept 2017]; Swift v New York Tr. Auth., 115 AD3d 507 [1st Dept 2014]).
Concur — Sweeny, J.P., Mazzarelli, Andrias, Moskowitz and Gische, JJ.
Cases cited
- Kang v. Almanzas 116 AD3d 540 p. 621
- Frias v. Gonzalez-Vargas 147 AD3d 500 at 501 p. 621
- Henchy v. VAS Express Corp. 115 AD3d 478 at 479 p. 621
- Perl v. Meher 18 NY3d 208 at 217-218 p. 621
- Liz v. Munoz 149 AD3d 646 p. 621
- Swift v. New York Transit Authority 115 AD3d 507 p. 621