SUM jury verdict sustainedDecember 15, 2016
Pyong Sun Yun v GEICO Ins. Co., 2016 NY Slip Op 08214 (2d Dept. 2016)
(1) “At the trial, the plaintiff presented the testimony of his treating orthopedic surgeon, who testified that he performed arthroscopic surgery on the plaintiff’s left shoulder less than three months after the accident. The plaintiff’s orthopedic surgeon further testified that he examined the plaintiff’s shoulder again in January 2013. He found that for elevation and abduction, the plaintiff’s shoulder had a range of motion limitation that was “minimal but perceptible,” and for internal rotation, the shoulder’s range of motion was “almost to normal, but not quite.” The defendant presented the testimony of an orthopedic surgeon who examined the plaintiff’s left shoulder in April of 2012, and found that its range of motion was “within normal limits.”
(2) “Here, the jury’s finding that the plaintiff did not sustain a serious injury to his left shoulder under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) was based on a fair interpretation of the evidence submitted at trial.”
He said she said. The gecko won.