Hamilton v. Marom

178 A.D.3d 424

111 N.Y.S.3d 177 (Mem)

Ronald HAMILTON, Plaintiff-Appellant,

v.David MAROM, Defendant-Respondent.

10492

Index 25434/15

Supreme Court, Appellate Division, First Department, New York.

ENTERED: DECEMBER 3, 2019

Ogen & Sedaghati, P.C., New York (Eitan Ogen of counsel), for appellant.

Clausen Miller, P.C., New York (Don R. Sampen of counsel), for respondent.

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered October 26, 2018, which, to the extent appealed from as limited by the briefs, granted the branch of defendant's motion for summary judgment dismissing plaintiff's claim of a serious injury to his right shoulder, unanimously reversed, on the law, without costs, and that part of the motion denied.

Acosta, P.J., Renwick, Mazzarelli, Kapnick, JJ.

Defendant satisfied his prima facie burden of showing that plaintiff did not sustain a serious injury to his right shoulder by submitting the reports of a neurologist and orthopedist, who found that plaintiff had normal range of motion and opined that any alleged injuries had resolved with no permanent or residual effects (see Diakite v. PSAJA Corp., 173 A.D.3d 535, 102 N.Y.S.3d 588 [1st Dept. 2019] ; Frias v. Gonzalez–Vargas, 147 A.D.3d 500, 47 N.Y.S.3d 30 [1st Dept. 2017] ). Defendant also pointed to plaintiff's deposition testimony acknowledging a prior right shoulder injury for which he had arthroscopic surgery about 10 years earlier.

In opposition, plaintiff raised a triable issue of fact through the reports of his treating physician and orthopedic surgeon who found limitations in range of motion, and who acknowledged the prior injury and surgery, and opined that there was a causal relationship between ...