Paulino v. Rodriguez

• Citation: 937 N.Y.S.2d 198,2012 N.Y. Slip Op. 00467,91 A.D.3d 559
• Parties: Krystal PAULINO, Plaintiff–Appellant, v. Christian RODRIGUEZ, et al., Defendants–Respondents.
• Decision Date: 26 January 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00467

91 A.D.3d 559

937 N.Y.S.2d 198

Krystal PAULINO, Plaintiff–Appellant,

v.Christian RODRIGUEZ, et al., Defendants–Respondents.

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

Jan. 26, 2012.

Pollack, Pollack, Isaac & DeCicco, New York (Michael H. Zhu of counsel), for appellant.

Law Offices of Edward M. Eustace, White Plains (Heath A. Bender of counsel), for respondents.

MAZZARELLI, J.P., SAXE, CATTERSON, ACOSTA, ROMÁN, JJ.

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about July 14, 2010, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint for failure to satisfy the “serious injury” threshold of Insurance Law § 5102(d), unanimously modified, on the law, to the extent of denying the motion with respect to plaintiff's claim of serious injury to her left shoulder, and otherwise affirmed, without costs.

Defendants met their prima facie burden of establishing their entitlement to judgment as a matter of law. Defendants demonstrated that plaintiff did not suffer a serious injury to her cervical spine, lumbar spine, or left shoulder by relying on the medical reports of plaintiff's treating physician which concluded, approximately four months after the accident, that she had full ranges of motion and that the MRIs of her cervical and lumbar spine were normal ( see Insurance Law § 5102[d]; Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002]; Newton v. Drayton, 305 A.D.2d 303, 304, 760 N.Y.S.2d 38 [2003] ).

In opposition, plaintiff raised an issue of fact regarding the injury to her left shoulder. Plaintiff's subjective complaints of persistent pain were substantiated by objective medical evidence, including an MRI of her left shoulder, taken approximately two weeks after the accident, which showed the presence of fluid in her subscapular bursa, consistent with the diagnosis of bursitis. Plaintiff also submitted medical evidence that she tested positive for a painful arc test and an impingement sign test, suffered persistent pain despite conservative treatment, and continued to exhibit range of motion deficits in her left shoulder even after undergoing arthroscopic surgery ( see Morris v. Cisse, 58 A.D.3d 455, 871 N.Y.S.2d 113 [2009]; Jones v. Norwich, 283 A.D.2d 809, 725 N.Y.S.2d 131 [2001] ). Since injuries may worsen over time, evidence of contemporaneous range of motion limitations is not a prerequisite to plaintiff's claim ( Perl v. Meher, 18 N.Y.3d 208, 936 N.Y.S.2d 655, 960 N.E.2d...