Rosado v. Martinez

• Decision Date: 17 December 2001
• Court: New York Supreme Court — Appellate Division
• Parties: ELSA ROSADO, Respondent,<BR>v.<BR>BERNARDO MARTINEZ, Defendant, and HAK SOO YUN, Also Known as HAK SOO YUM, Appellant.

289 A.D.2d 386

734 N.Y.S.2d 622

ELSA ROSADO, Respondent,

v.BERNARDO MARTINEZ, Defendant, and HAK SOO YUN, Also Known as HAK SOO YUM, Appellant.

Decided December 17, 2001.

Santucci, J. P., S. Miller, Luciano, Feuerstein and Adams, JJ., concur.

Ordered that the order is affirmed, without costs or disbursements.

The appellant made a prima facie showing of entitlement to judgment as a matter of law 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. In opposition, the plaintiff submitted the affirmations and reports of her treating and examining neurologists, and the affidavit and report of her physical therapist, which showed that she sustained a permanent partial disability in her cervical spine, her right hip, and right knee as a result of the subject accident. The plaintiff's proof specified, among other things, upon a clinical range of motion examination, the degrees to which the plaintiff's movements were restricted in her spine, hip, and knee. Thus, the evidence was sufficient to raise a triable issue of fact as to whether the plaintiff sustained a permanent and consequential limitation of her spine, right hip, and right knee (see, Vitale v Lev Express Cab Corp., 273 AD2d 225; Meyer v Gallardo, 260 AD2d 556; Ventura v Moritz, 255 AD2d 506; Torres v Micheletti, 208 AD2d 519).