Justice F. Dana Winslow
Defendants moved for summary judgment dismissal, arguing plaintiffs failed to show they sustained a serious injury under Insurance Law §5102(d). Plaintiffs sought damages for personal injuries allegedly sustained in a car accident. Defendants' experts found no significant limitations in the ranges of motion regarding any of plaintiff Serpas' claimed injuries, nor other serious injuries pursuant to §5102(d) causally related to the accident. The court found defendants met their prima facie burden, but concluded Serpas expert's affidavit demonstrated there was a triable issue of fact if the collision caused injuries to Serpas that were serious under the "permanent consequential limitation" or "significant limitation" categories of §5102(d). Yet, the court noted as plaintiff Villalobos' bill of particulars alleged an injury to her right shoulder, the contention the accident required her to undergo shoulder surgery was not shown. Thus, she was directed to supplement her bill of particulars and submit to a further deposition and physical examination. Also, the court ruled defendants' argued the accident was the result of "an act of God" was unavailing stating "God's actions may affect healing but, under New York Law, not creation of the condition," denying dismissal.
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