Appellate Division of the Supreme Court of New York, 2012

Njie v. Thompson

Njie v. Thompson
Appellate Division of the Supreme Court of New York · Decided October 2, 2012
99 A.D.3d 421; 951 N.Y.2d 517
Njie v. Thompson

Cases that cite this one

2 later published cases cite this decision.

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*422Defendant made a prima facie showing of entitlement to summary judgment as to plaintiffs claims of “significant limitation of use” of his right shoulder (Insurance Law § 5102 [d]; see Spencer v Golden Eagle, Inc., 82 AD3d 589, 590 [1st Dept 2011]). Defendant submitted an expert medical report finding normal ranges of motion, as well as the report of a radiologist who opined that the MRI of plaintiff’s shoulder revealed no abnormalities.

In opposition, plaintiff raised a triable issue of fact, since his treating physicians found a tear in his right shoulder (see Duran v Kabir, 93 AD3d 566, 567 [1st Dept 2012]; Peluso v Janice Taxi Co., Inc., 77 AD3d 491, 492 [1st Dept 2010]), and recent range of motion limitations in his right shoulder (see Jacobs v Rolon, 76 AD3d 905 [1st Dept 2010]).

Since the Court of Appeals rejected “a rule that would make contemporaneous quantitative measurements a prerequisite to recovery,” there was no requirement that the treating physician set forth any objective test that would have been used at that time (see Perl v Meher, 18 NY3d 208, 218 [2011]). Dr. Cortijo’s report of an examination the day after plaintiff’s accident established the requisite causation (id. at 217-218 [“a contemporaneous doctor’s report is important to proof of causation”] [emphasis omitted]); plaintiff was not required to submit evidence of any quantified range of motion testing performed at that time (see Biascochea v Boves, 93 AD3d 548, 548-549 [1st Dept 2012]).

We note that if plaintiff prevails at trial on his serious injury claims, he will be entitled to recovery also on his non-serious injuries caused by the accident (see Linton v Nawaz, 14 NY3d 821 [2010]; Rubin v SMS Taxi Corp., 71 AD3d 548 [2010]). Concur — Friedman, J.E, Acosta, Ren wick, Richter and AbdusSalaam, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.