Order, Supreme Court, Bronx County (Bertram Katz, J.), entered July 3, 2002, which granted defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff had not sustained serious injury within the meaning of Insurance Law § 5102 (d), affirmed, without costs.
Even assuming the summary description of the tests performed on plaintiff was sufficient to constitute objective medical proof of serious injury under Insurance Law § 5102 (d) (see Toure v Avis Rent A Car Sys.,
We note that the record is devoid of admissible evidence demonstrating that plaintiff sustained a serious injury in 1998, when the accident occurred. Given the absence of such evidence, the conclusion of plaintiffs neurologist, made after a January
In addition, as the only objective medical proof of serious injury comes from a physical examination of plaintiff performed four years after the accident, it was insufficient to show that plaintiffs injuries prevented him from performing substantially all of his usual daily activities for at least 90 of the 180 days immediately following the accident (see Ersop v Variano,
The dissent overlooks that there is no admissible evidence of serious injury at the time of the accident, relying instead on the minimal range of motion restrictions found by plaintiffs doctor in 2002, four years after the accident, and the doctor’s conclusory allegations of causation. While the dissent also points out that a gap in treatment may be justified on the ground that such treatment may be futile, no treatment provider has made such an assertion in this case (cf. Toure v Avis Rent A Car Sys.,
Tom and Mazzarelli, JJ., dissent in a memorandum by Mazzarelli, J., as follows: The majority asserts that there is no admissible evidence in the record that plaintiff suffered a serious injury in 1998, when the accident occurred. Further, it concludes that because of the passage of time between the accident and the evaluation by plaintiffs doctors, their findings that plaintiffs injuries were caused by the accident must be considered speculation. I disagree.
The record contains sufficient admissible evidence to withstand defendant’s motion for summary judgment on the threshold issue of whether plaintiff suffered a “serious injury” under Insurance Law § 5102 (d). At his deposition, plaintiff testified that as a direct result of the March 15, 1998 accident in which the car he was driving was hit by three other vehicles, he was unable to return to his job as a welder for six months. He also testified that he began physical therapy sessions two days after the accident for injuries to his neck, his back and his knees and that he worked with the physical therapists five times a week for six months. Elaintiff also received disability benefits from his union during this same six-month period. In addition, plaintiff recounted that when he returned to work, he was placed on light duty because he could no longer lift heavy objects.
Significantly, defendants did not argue, or introduce any evidence, that plaintiff’s injuries were caused by anything other than his 1998 car accident (compare Shinn v Catanzaro,
In opposition to defendants’ motion and cross motion, plaintiff submitted his deposition testimony, an affidavit describing his accident and the treatment he received for his subsequent injuries, and the reports of two doctors and a radiologist who examined and treated him. The sworn medical report of one of those doctors, Dr. Rose, an orthopaedic surgeon, relayed that he had reviewed three x-rays and two MRIs of plaintiff’s spine, which were conducted within approximately one month of plaintiffs accident. Dr. Rose also affirmed that he examined the 33-year-old plaintiff on January 11, 2002, and he observed that plaintiffs lumbar spine had 70% forward flexion, squatting was limited to 80% of normal and that straight leg raising was positive at 70% on the right and positive on the left at 75%. This expert concluded that based upon his review of the x-rays, the MRIs and his examination, plaintiff sustained a “permanent partial disability” which was causally related to plaintiffs accident.
Plaintiffs submissions provided sufficient objective medical evidence to raise an issue of fact as to whether he sustained a “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” as a result of his accident (Insurance Law § 5102 [d]; see Toure v Avis Rent A Car Sys.,
In addition to conducting a physical evaluation of plaintiff, Dr. Rose’s conclusions were based upon his review of x-rays and
Accordingly, I dissent and would reverse the IAS court’s order, deny defendants’ motion and cross motion for summary judgment and reinstate the complaint.