Opinion
February 2, 1984
Appeal from an order of the Supreme Court at Special Term (Williams, J.), entered December 28, 1982 in Albany County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff commenced the instant action on July 17, 1981 to recover damages for personal injuries he allegedly sustained as a result of an auto-truck collision that occurred on December 9, 1979. In a bill of particulars, plaintiff alleged that he suffered injuries (bruises) to various portions of his body and serious injury to his "left thigh, right knee, back and nose". At an examination before trial held on March 15, 1982, plaintiff stated that the only area of his body that still bothered him as a result of the accident was the area above his left knee. He described that injury as a "pulling, like a snapping sensation", with a "burning" and a "prickling" sensation there at times since the accident. Defendant moved for summary judgment pursuant to CPLR 3212 upon the ground that the complaint was without merit and that there were no triable issues of fact on the question of serious injury. Special Term found that plaintiff had failed to establish a prima facie case of serious injury as defined in subdivision 4 of section 671 Ins. of the Insurance Law and granted defendant's motion for summary judgment dismissing the complaint. This appeal ensued. The order entered at Special Term should be affirmed. Although the question of the existence of a "serious injury" is often left to the jury, case law has established that summary judgment dismissing a claim of "serious injury" will be granted in appropriate cases ( Simone v Streeben, 56 A.D.2d 237; Sanders v Rickard, 51 A.D.2d 260). It is the function of the court in the first instance to determine whether plaintiff has established a prima facie case with respect to serious injury as defined in subdivision 4 of section 671 Ins. of the Insurance Law ( Licari v Elliott, 57 N.Y.2d 230; Hezekiah v Williams, 81 A.D.2d 261). In the instant case, plaintiff failed to establish by competent medical proof a "permanent loss" or "consequential limitation of use of a body organ or member". His own testimony indicates that he has not lost the use of his left leg. He began work within the next several days after the accident and missed only 10 days from work in the two and one-half year period following the collision. He works a full week plus a half day of overtime on Sundays. He performs the same work now as before the accident. Plaintiff's claim that he is unable to work overtime during the week because of his injury is not supported by medical opinion. Dr. Joseph Fay characterized the injury to his left leg only as "mild to moderate" which may be permanent in nature. Plaintiff's further claim of a medically determined injury and impairment of a nonpermanent nature preventing him from performing substantially all of the material acts which constitute his usual and customary daily activities for a period in excess of 90 days in the 180 days following the injury has clearly not been met. Mere allegations of limitation of body functions without medical proof are insufficient to demonstrate the existence of a genuine factual issue ( Daviero v Johnson, 88 A.D.2d 732, 733). It is not enough that plaintiff suffered some injuries. He must instead demonstrate that he has suffered a "serious injury" (see Licari v Elliott, supra, p 238). Order affirmed, with costs. Casey, Mikoll and Yesawich, Jr., JJ., concur.
Kane, J.P., and Main, J., dissent and vote to reverse in the following memorandum by Kane, J.P.
It is conceded that plaintiff, then 40 years of age, sustained an injury to his left knee in the accident of December 9, 1979. As of November 30, 1982, he continued to suffer pain and a "prickling" sensation around his left knee and thigh area, which, according to the affidavit of his attending physician submitted on the motion herein, has resulted in a mild to moderate consequential limitation or impairment of his left leg and knee which may be permanent in nature. Moreover, this affidavit further stated that the injury resulted in great difficulty for plaintiff and prevented him from engaging in a number of activities. The physician also reported on nerve conduction studies made of the injured area by a neurological specialist who had concluded that plaintiff's complaints were suggestive of possible stretch injury or even neuroma of the related nerves. Plaintiff, a tractor trailer operator, described the limitations on his ability to withstand prolonged work activity, climb a ladder to repair his roof, or operate a chain saw to cut wood for his home which was heated by wood stoves. It is our view that the documentary sworn proof submitted on behalf of plaintiff on this motion is sufficient to establish, prima facie, a "serious injury" within the meaning of subdivision 4 of section 671 Ins. of the Insurance Law, and the instant motion should not have been granted ( Licari v Elliott, 57 N.Y.2d 230, 237; Simone v Streeben, 56 A.D.2d 237; Sanders v Rickard, 51 A.D.2d 260). The order should be reversed, the motion for summary judgment denied, and a trial should be directed to determine the issue of fact raised by plaintiff's prima facie proof of serious injury.