Summary
In Meyer v. Gallardo, 260 A.D.2d 556; 688 N.Y.S.2d 624, 625 (2d Dept. 1999), the Second Department affirmed a denial of summary judgment where one of the physicians who examined the injured plaintiff on behalf of the defendant stated that the lateral rotation of his cervical spine was 80 degrees to the right and SO degrees to the left.
Summary of this case from Friedman v. HerwayOpinion
April 19, 1999
Appeal from the Supreme Court, Nassau County (Lally, J.).
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
To be entitled to summary judgment, the defendants were required to establish a prima facie case that the plaintiff Robert Meyer (hereinafter the injured plaintiff) did not a sustain a serious injury within the meaning of Insurance Law § 5102 (d) ( see, Gaddy v. Eyler, 79 N.Y.2d 955; Moore v. Tappen, 242 A.D.2d 526; Healea v. Andriani, 158 A.D.2d 587). The defendants failed to do so. One of the physicians who examined the injured plaintiff on behalf of the defendants stated that the lateral rotation of his cervical spine was 80 degrees to the right and 50 degrees to the left. This alone raises an issue of fact as to whether the injured plaintiff suffered a "significant limitation of use of a body function or system" (Insurance Law § 5102 [d]; see, Cesar v. Felix, 181 A.D.2d 852, 853; Healea v. Andriani, supra; see also, Parker v. Defontaine-Stratton, 231 A.D.2d 412, 413). Moreover, the defendants did not address the plaintiffs allegation that he suffered a partial tear of the rotator cuff of his left shoulder ( see, Minori v. Hernandez Trucking Co., 239 A.D.2d 322, 323).
Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.