Rampino v. Shaffren

1 Citing case

  1. Kearney v. Garrett

    92 A.D.3d 725 (N.Y. App. Div. 2012)   Cited 33 times

    knee sustained certain injuries. Although the defendants attempted to establish, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law § 5102(d) ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d at 352, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d at 955–956, 582 N.Y.S.2d 990, 591 N.E.2d 1176), the defendants' examining orthopedist recounted, in an affirmed report submitted in support of the motion for summary judgment, that range-of-motion testing performed during the examination revealed the existence of a significant limitation of motion in the knee ( see Scott v. Gresio, 90 A.D.3d 736, 736, 934 N.Y.S.2d 351). Furthermore, to the extent that the defendants also attempted to establish, prima facie, that those alleged injures were not caused by the subject accident, the defendants failed to do so, as their evidentiary submissions actually demonstrated the existence of a triable issue of fact as to causation ( see Rampino v. Shaffren, 90 A.D.3d 884, 885, 936 N.Y.S.2d 214; Luby v. Tsybulevskiy, 89 A.D.3d 689, 689, 931 N.Y.S.2d 902; Kelly v. Ghee, 87 A.D.3d 1054, 1055, 929 N.Y.S.2d 763). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint, without regard to the sufficiency of the papers submitted by the plaintiffs in opposition ( see Scott v. Gresio, 90 A.D.3d at 736, 934 N.Y.S.2d 351; Kelly v. Ghee, 87 A.D.3d at 1055, 929 N.Y.S.2d 763).