Opinion
2014-04-1
Anthony J. FERRARA, Plaintiff–Appellant, v. Shirley MIDDLETON, et al., Defendants–Respondents.
Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellant. Richard T. Lau & Associates, Jericho (Jill Greenfield of counsel), for respondents.
Sullivan Papain Block McGrath & Cannavo, P.C., New York (Stephen C. Glasser of counsel), for appellant. Richard T. Lau & Associates, Jericho (Jill Greenfield of counsel), for respondents.
ACOSTA, J.P., RENWICK, MOSKOWITZ, FREEDMAN, FEINMAN, JJ.
Judgment, Supreme Court, Bronx County (Ben R. Barbato, J.), entered February 15, 2013, dismissing the complaint alleging serious injury within the meaning of Insurance Law § 5102(d), unanimously reversed, on the law, without costs, and the judgment vacated. Appeal from order, same court and Justice, entered January 17, 2013, which granted defendants' motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Defendants established prima facie that plaintiff did not sustain a serious injury of a permanent nature. They submitted the affirmed report of an orthopedic surgeon who, upon examination, found that plaintiff had full range of motion in his shoulders and that his surgery was successful, allowing him to resume school, sports and work activities. Defendant also submitted medical records from plaintiff's treating physicians, who reported shortly after the accident that plaintiff had full range of motion in his left shoulder ( seeInsurance Law § 5102[d]; Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002]; Newton v. Drayton, 305 A.D.2d 303, 304, 760 N.Y.S.2d 38 [1st Dept.2003] ).
In opposition, plaintiff raised a triable issue of fact concerning a significant limitation and a permanent consequential limitation with respect to his left shoulder. The MRI and the surgical reports of plaintiff's arthroscopic surgery provide objective evidence of a superior labrum anterior and posterior tear. Plaintiff's treating orthopedic surgeon, who examined plaintiff on September 19, 2012, three years after the accident, found significantly decreased range of motion and opined that plaintiff suffered permanent significant or consequential limitations as a result of the accident ( see Osborne v. Diaz, 104 A.D.3d 486, 961 N.Y.S.2d 117 [1st Dept.2013] ). He also noted that, while plaintiff “started feeling better after 6 weeks of intense physical therapy,” his condition deteriorated and he started feeling pain, which was corroborated by positive tests for impingement (see Paulino v. Rodriguez, 91 A.D.3d 559, 937 N.Y.S.2d 198 [1st Dept.2012];see also Morris v. Cisse, 58 A.D.3d 455, 871 N.Y.S.2d 113 [1st Dept.2009];Perl v. Meher, 18 N.Y.3d 208, 218, 936 N.Y.S.2d 655, 960 N.E.2d 424 [2011] [“Injuries can become significantly more or less severe as time passes”] ).
Defendants also established prima facie that plaintiff did not suffer a 90/180–day injury by submitting plaintiff's bill of particulars alleging that he was a student and that he did not miss any classes and missed only 31 days of work ( see Mitrotti v. Elia, 91 A.D.3d 449, 936 N.Y.S.2d 42 [1st Dept.2012] ). In opposition, plaintiff failed to submit any evidence of a medical determination that he was unable to engage in substantially all of his material and customary daily activities for 90 of the first 180 days after the accident ( see Torain v. Bah, 78 A.D.3d 588, 589, 913 N.Y.S.2d 27 [1st Dept.2010] ).