Opinion
February 4, 1999
Appeal from the Supreme Court (Lynch, J.).
On March 3, 1991, plaintiff Sherri L. Barnes (hereinafter plaintiff) was involved in a motor vehicle accident while on duty as a police officer for the City of Schenectady, Schenectady County. The accident occurred when defendant made a U-turn in front of the police vehicle in which plaintiff was a passenger. Subsequently, plaintiff, and her husband, derivatively, commenced the instant personal injury action. Thereafter, defendant moved for summary judgment pursuant to CPLR 3212 (b) contending that plaintiff's injuries did not meet the serious injury threshold as required by Insurance Law § 5102 (d); in response, plaintiffs cross-moved for partial summary judgment on the serious injury issue. Supreme Court denied defendant's motion and granted plaintiffs' cross motion finding that "[plaintiff] sustained a 'serious injury' if in no other way then by compliance with the '90/180' rule". Defendant now appeals.
It is beyond cavil that a claim of serious injury must be based on objective medical findings and diagnostic tests ( see, e.g., Lanuto v. Constantine, 192 A.D.2d 989, 991, lv denied 82 N.Y.2d 654) and "'subjective complaints of pain * * * absent other proof [are] insufficient to establish a "serious injury"'" ( Tankersley v. Szesnat, 235 A.D.2d 1010, 1012, quoting Eisen v. Walter Samuels, 215 A.D.2d 149, 150). Here, the record reveals that in April 1991, plaintiff's treating physician detected tenderness along the cervical area in addition to tightness of the muscles and indicated that plaintiff was still totally disabled and unable to return to her work as a police officer. In May 1991, plaintiff's treating physician indicated that upon examination, plaintiff's flexion was "inhibited". Further, following the accident plaintiff was diagnosed as having muscle spasms in her cervical spine and prescribed Flexeril and Tylenol with codeine. Shortly thereafter the physician prescribed a course of physical therapy to increase plaintiffs range of motion before she could return to work. Plaintiff was reevaluated in June 1991 and directed not to return to work as she had some decrease in fiexion and extension of the cervical spine. In July 1991, it was determined that plaintiff's pain was almost totally resolved and that she could return to work on July 22, 1991 without restrictions.
Notably, a serious injury is defined as "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]). In the case at bar, plaintiff's medical records indicate that as a result of the injury to her cervical spine, she was out of work for 141 days following the accident, from March 4, 1991 until July 22, 1991. In addition, both plaintiffs' affidavits state that plaintiff was unable to perform her usual and customary daily activities for at least 90 days following the accident. Since defendant submitted no medical evidence to contradict the opinions of plaintiff's physicians, there is no issue of credibility to be resolved by a jury ( see, Arbour v. Commercial Life Ins. Co., 240 A.D.2d 1001, 1003). Based on the foregoing, we conclude that Supreme Court properly found that plaintiff had suffered a serious injury "if in no other way then by compliance with the '90/180' rule".
Mikoll, J. P., Crew III, Yesawich Jr. and Carpinello, JJ., concur.
Ordered that the order is affirmed, with costs.