In Hudkins v 81st St. Parking, LLC, plaintiff sought to recover for personal injuries suffered in a car accident. Under Insurance Law §5102(d), in order for a plaintiff to recover under §5102(d), the plaintiff must demonstrate that he sustained “serious injury”, as defined by §5102(d), as a result of the accident.

In Hudkins, the Second Department of the Appellate Division held that the plaintiff’s submission of his treating orthopedist’s affidavit, based on the orthopedist’s contemporaneous and recent range of motion testing, raised a triable issue of fact as to whether the plaintiff sustained serious injury as a result of the subject accident under the permanent consequential limitation or the significant limitation of use categories of Insurance Law § 5102(d).

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02972.htm