Cooper v Motor Veh. Acc. Indem. Corp., 2016 NY Slip Op 51707(U)(App. Term 2d Dept. 2016)
“Here, a fair interpretation of the evidence supports the jury’s conclusion that plaintiff sustained a serious injury under the permanent consequential limitation of use category of Insurance Law § 5102 (d). Plaintiff’s expert witness testified about plaintiff’s limitation of her ranges of motion and compared his findings to normal ranges of motion. Moreover, the expert witness offered testimony with respect to the tests he had performed to arrive at his conclusion that plaintiff had sustained a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Scudera v Mahbubur, 299 AD2d 535 [2002]). Although defendant’s medical experts offered a different opinion, the resolution of conflicting medical opinions is within the province of the jury (see Mendoza v Kaplowitz, 215 AD2d 735 [1995]).”
Range of motion and orthopedic tests are sufficient to establish threshold. Leave it to MVAIC to make plaintiff’s life on a 25k policy case miserable.
