Ye Jin Han v. Karimzada

169 A.D.3d 1109

92 N.Y.S.3d 906 (Mem)

YE JIN HAN, Appellant,

v.Nahid KARIMZADA, Respondent.

2017–06495

Index No. 603724/16

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

Submitted—November 27, 2018

February 27, 2019

Andrew Park, P.C., New York, N.Y. (Alexander Berger of counsel), for appellant.

Sette & Apoznanski (Russo & Tambasco, Melville, N.Y. [Susan J. Mitola and Gerard Ferrara], of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered May 25, 2017. The order granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident on September 28, 2013. The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The Supreme Court granted the motion. The plaintiff appeals.

The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The defendant submitted competent medical evidence establishing, prima facie, that any limitations of range of motion were not significant (see Il Chung Lim v. Chrabaszcz, 95 A.D.3d 950, 951, 944 N.Y.S.2d 236 ; McLoud v. Reyes, 82 A.D.3d 848, 849, 919 N.Y.S.2d 32 ; Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180 ). In opposition, however, the plaintiff submitted competent evidence of significant loss of range of motion in the lumbar region of her spine and her right shoulder, which raised a triable issue of fact (see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424 ).

Accordingly, the Supreme Court should have...