Opinion
2005-614 QC.
Decided July 12, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered February 25, 2005. The order granted defendant's motion for summary judgment.
Order reversed without costs and defendant's motion for summary judgment denied.
PRESENT: PESCE, P.J., WESTON PATTERSON and BELEN, JJ
Defendant moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). The undisputed facts of the underlying motor vehicle accident were that on April 30, 2001 at approximately 2:30 P.M. at the intersection of Laburnum Avenue and Robinson Street in Queens, New York, the vehicle being driven by plaintiff was struck by the vehicle owned and operated by defendant. Defendant had failed to stop at the stop sign controlling traffic at the intersection, and the front of defendant's vehicle struck the driver's side of plaintiff's van. Plaintiff's van was severely damaged on the left side, and all of the driver's side windows were shattered. His car was totally demolished. Plaintiff lost consciousness on impact and was taken from the scene of the wreckage by ambulance.
Plaintiff complained of dizziness and pain in his left shoulder, back and neck to the emergency medical technicians who responded to the scene of the accident. A cervical collar was placed about his neck, and he was taken to Booth Memorial Hospital in Flushing, New York. After being examined in the emergency room, plaintiff was instructed to maintain his arm at a 45 degree angle and to seek further medical attention from a physician of his choice. His left arm was placed in a sling, and he was given pain medication before he was released from the hospital.
In our view, defendant failed to make a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Although one of defendant's examining physicians concluded that plaintiff did not sustain a serious injury within the meaning of said law, he nevertheless admitted that he found a restriction of active abduction of the left shoulder, with plaintiff complaining of discomfort as well as a minor click on the left shoulder on active abduction. The doctor did not compare the restriction of active abduction to what is normal. Notwithstanding the doctor's conclusion that the restriction was "slight," absent such comparative quantification, this court cannot conclude that the restriction of active abduction is "mild, minor or slight" so as to be considered insignificant within the meaning of the no-fault statute ( Licari v. Elliott, 57 NY2d 230, 236; see Yashayev v. Rodriguez, 28 AD3d 651; Tchjevskaia v. Chase, 15 AD3d 389; Marquez v. Oballe, 14 AD3d 667). Notably, another doctor who examined plaintiff on defendant's behalf stated that there is a heterogenous signal seen on all the T1 weight images, which is consistent with tendonpathy of the supraspinatus tendon. He also noted that plaintiff had disc bulges at L4-L5, C4-C5, C5-C6 and C6-C7. Under the circumstances, defendant's motion should have been denied as he failed to meet his initial burden of establishing prima facie entitlement to judgment as a matter of law.
Moreover, while we disagree with the dissent's conclusion that defendant's motion shifted the burden, we note, in any event, that plaintiff successfully raised a triable issue of fact in opposition to the motion. Plaintiff's physician presented qualitative assessments of plaintiff's condition which had an objective basis and compared plaintiff's limitation of motion of his cervical spine to normal function ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350; Pesce v. Tillotson, 7 AD3d 597). While said physician submitted an affirmation which referred to but appears not to have explicitly incorporated his unsworn report, under the particular circumstances of this case, to the extent the unsworn report was not affirmed under CPLR 2106, such defect was waived by defendant ( Scudera v. Mahbuber, 299 AD2d 535).
Pesce, P.J. and Belen, J., concur.
Weston Patterson, J., dissents in a separate memorandum.
In my opinion, defendant's submissions establish, prima facie, that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102. The affirmations submitted by defendant's examining physicians reveal, upon testing, no limitation of motion of plaintiff's cervical spine, lumbar spine and left shoulder. Although one of defendant's physicians noted a restriction of active abduction of the left shoulder, he nonetheless described the restriction as "slight" and found that, passively, plaintiff's left shoulder had a full range of motion ( cf. Yashayev v. Rodriguez, 28 AD3d 651 [report that plaintiff had "decreased" flexion, without more, was insufficient for court to conclude that such decrease was "mild, minor or slight"]). Moreover, while defendant's examining radiologist found disc bulges and tendinopathy of the supraspinatus tendon, he concluded that these conditions were degenerative in origin and completely unrelated to the underlying motor vehicle accident. On this record, it cannot be said that defendant failed to establish a prima facie case. Accordingly, I would review the sufficiency of plaintiff's opposition papers.
In my view, plaintiff unsuccessfully opposed the motion. Plaintiff's physicians neither designated a numeric percentage of plaintiff's loss of range of motion of his lumbosacral spine, cervical spine or left shoulder, nor provided a qualitative assessment of plaintiff's condition by comparing his limitations to the normal function, purpose and use of the affected body organ, member, function or system ( see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). In addition, neither plaintiff nor his physicians provided a sufficient explanation as to why plaintiff failed to seek any treatment for his injuries after the initial six-month period ( see Pommells v. Perez, 4 NY3d 566; Jones v. Schmitt, 7 Misc 3d 47 [App Term, 2d 11th Jud Dists 2005]).
Accordingly, I would vote to affirm the order below.