Mangano v. Sherman

¶1Judgment unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint on the ground that Donna L. Mangano (plaintiff) did not sustain a serious injury (see, Insurance Law § 5102 [d]) in the motor vehicle accident at issue herein. Although defendants met their initial burden, plaintiffs raised a triable issue of fact by submitting the affidavit of an orthopedic surgeon who had treated plaintiff for over 2V2 years following the accident. He opined to a reasonable degree of medical certainty that plaintiff had suffered permanent limitations including, inter alia, a 20% to 30% loss of flexion, rotation and extension in her neck, a 20 degree loss of full elevation of the right shoulder, permanent winging of the right scapula with permanent nerve damage and palsy to the long thoracic nerve and a 20% loss of use of the right shoulder. That evidence is sufficient to raise an issue of fact whether plaintiff sustained a serious injury (see, Rodriguez v Duggan, 266 AD2d 859; Nathanson v David, 244 AD2d 930; Jablonski v Bolt, 213 AD2d