155 A.D.2d 647 | N.Y. App. Div. | 1989
Lead Opinion
— In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (McCarthy, J.), entered February 1, 1988, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
Initially, we note that the Supreme Court erroneously denied the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff Barbara Part-low did not sustain a serious injury as defined in Insurance Law § 5102 (d), in reliance upon a line of decisions of the Appellate Division, Third Department, which would require the defendants to submit a physician’s affidavit in order to prevail on the motion (see, e.g., La Frenire v Capital Dist. Transp. Auth., 96 AD2d 664). We have expressly declined to follow this rule in cases such as the one at bar (see, Wright v Melendez, 140 AD2d 337; Popp v Kremer, 124 AD2d 720).
Turning to the merits, we find that the plaintiff Barbara Partlow has failed to submit prima facie medical evidence of "serious injury” within the meaning of Insurance Law § 5102 (d). The injured plaintiff attempts to satisfy the "serious injury” requirement for maintaining this action by demonstrating that she has suffered a "significant limitation of use of a body function or system” (Insurance Law § 5102 [d]). However, while such a "significant limitation” need not be permanent in order to constitute a "serious injury”, the Court of Appeals has cautioned that "a minor, mild or slight limitation of use should be classified as insignificant within the
In the case before us, the injured plaintiff has submitted a hospital emergency room report based on an examination she underwent on the date of the accident. This report lists the diagnosis of her condition as "cervical and lower back strain”. Additionally, she has submitted a report prepared by her chiropractor, who also examined her on the date of the accident. This report indicates that as of that date, the injured plaintiff was suffering a decreased cervical rotation of 15 degrees on her right side and 20 degrees on her left side, with an "impairment of at least seven percent in the upper extremity”. The chiropractor further opined that the "[prognosis is poor with definite residuals”. The injured plaintiff returned to work approximately one month after the date of the accident.
While the chiropractor’s findings suggest that the injured plaintiff suffered a bodily limitation, the record is devoid of medical evidence indicating that her decreased cervical rotation and upper extremity impairment persisted for any appreciable length of time following the accident. Indeed, an examination report prepared by the defendants’ expert some 22 months after the accident stated that the injured plaintiff had recovered and that there were no "objective findings to indicate any residual disability as a consequence of the accident”. Moreover, while she may have continued to see her treating chiropractor, she submitted no reports from him regarding her condition subsequent to the date of the accident. The only remaining medical evidence submitted by the injured plaintiff is a report setting forth the results of a thermogram which was performed on the injured plaintiff some 15 months after
In failing to come forward with any medical evidence indicating the duration of her bodily limitation in this case, the injured plaintiff has not established a prima facie case that she suffered more than “a minor, mild or slight limitation of use” (Licari v Elliott, 57 NY2d 230, 236, supra; see, Bader v Santana, 106 AD2d 858; see also, Leschen v Kollarits, 144 AD2d 122). Accordingly, a trial on the issue of whether she sustained a "serious injury” is unnecessary, and the defendants are entitled to judgment as a matter of law. Thompson, J. P., Sullivan and Harwood, JJ., concur.
Dissenting Opinion
dissents and votes to affirm the order appealed from with the following memorandum in which Brown, J., concurs. Summary judgment is an appropriate vehicle for determining whether a plaintiff can establish, prima facie, a serious injury within the meaning of Insurance Law § 5102 (d) (see, Wright v Melendez, 140 AD2d 337). Relying on the rule of the Appellate Division, Third Department, which would require the defendants to submit a physician’s affidavit in order to prevail on a motion for summary judgment (see, Proper v Saunders, 102 AD2d 907; Savage v Delacruz, 100 AD2d 707; La Frenire v Capital Dist. Transp. Auth., 96 AD2d 664), the Supreme Court denied the defendants’ motion on the ground, inter alla, of insufficiency of the moving papers. Although we have declined to follow the rule of the Appellate Division, Third Department, where the plaintiff’s serious injury claim is patently without merit (Wright v Melendez, 140 AD2d 337, supra; Padron v Hood, 124 AD2d 718, 720; Popp v Kremer, 124 AD2d 720, 721), here, the injured plaintiff’s medical records suffice to demonstrate a meritorious claim (cf., Palmer v Amaker, 141 AD2d 622).
Insurance Law § 5102 (d) defines a “serious injury” as including a "significant limitation of use of a body function or system”, which does not require a finding that the limitation
