Opinion
2011-12-27
JANG HWAN AN, et al., Plaintiffs–Appellants, v. Carlos A. PARRA, et al., Defendants–Respondents.
Sim & Park, LLP, New York (Sang J. Sim of counsel), for appellants. Vincent P. Crisci, New York (David Weiser of counsel), for respondents.
Sim & Park, LLP, New York (Sang J. Sim of counsel), for appellants. Vincent P. Crisci, New York (David Weiser of counsel), for respondents.
MAZZARELLI, J.P., SWEENY, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 21, 2010, which granted defendants' motion for summary judgment dismissing the complaint on the ground that plaintiffs did not suffer a “serious injury” within the meaning of Insurance Law § 5102(d), unanimously modified, on the law, to the extent of reinstating the claims for permanent loss of use of a body organ, member, function or systems, permanent consequential limitation of use of a body function or system, and significant limitation of use of a body function or system, and otherwise, affirmed, without costs.
Defendants failed to demonstrate their entitlement to judgment as a matter of law on plaintiffs' claim to recover for serious injury under Insurance Law § 5102. In opposition to defendant's motion, plaintiffs submitted, among other things, the affidavits of their treating chiropractor, who averred that both plaintiffs had specified decreased ranges of motion in their cervical and lumbar spines, plaintiff Jang Hwan's right knee and plaintiff Jung Sook's right shoulder. The chiropractor averred that plaintiffs' injuries were sustained as result of the subject accident, and not the result of degenerative disease.
Jang Hwan submitted an affirmed report of the MRI results of his right knee, finding that he suffered multiple meniscal tears, joint effusion and a bone cyst or avascular neurosis. Jung Sook submitted an affirmed MRI report of her right shoulder, showing tears of the supraspinatus and subscapularis tendons. Such medical evidence, which contradicts defendants' medical evidence of a degenerative disease, raises an issue of fact as to the existence and causation of plaintiffs' injuries ( see Suazo v. Brown, 88 A.D.3d 602, 931 N.Y.S.2d 67 [2011]; Chakrani v. Beck Cab Corp., 82 A.D.3d 436, 917 N.Y.S.2d 862 [2011] ).
Plaintiffs, however, have failed to raise an issue of fact concerning their ability to perform substantially all of their daily activities for at least 90 of the first 180 days following the accident, inasmuch as both plaintiffs testified that they were able to return to work within 90 days following the accident ( see Prestol v. McKissock, 50 A.D.3d 600, 856 N.Y.S.2d 598 [2008] ).