McCarthy v. Perault

4 Citing cases

  1. Moscato v. United States

    No. 15-CV-1063V (W.D.N.Y. Feb. 8, 2018)   Cited 1 times

    Some of the measurements put Moscato at cervical flexion of around 30 degrees; cervical extension of around 20 degrees; and lateral bending of around 20 degrees. Cf., e.g., McCarthy v. Perault, 716 N.Y.S.2d 463, 465 (App. Div. 2000) (reversing summary judgment for defendant and ordering a trial, where plaintiff had the same cervical measurements). Even Dr. Castiglia found limitations in August 2016; his October 2016 examination showing full motion is an outlier in the table.

  2. Gualtieri v. Farina

    02 Civ. 0992 (WCC) (S.D.N.Y. Sep. 16, 2003)   Cited 23 times
    Holding that there can be no serious injury under the 90/180 category where the plaintiff's “self-serving testimony that she can no longer clean her house or hold her baby for long periods of time is unsubstantiated”

    Based on the above evidence, we find that the defendants have satisfied their burden of making a prima facie case that plaintiff did not sustain a serious injury within the meaning of New York Insurance Law § 5102 based on plaintiffs own treating physician's notes that her neck was supple in 2001, Dr. Weintraub's affirmation that plaintiffs neck was supple in the most recent of all the physical examinations, January of 2003, and Dr. Pracella's examination in 2001 which indicated a range of motion within normal limits. McCarthy v. Perault, 277 A.D.2d 664, 665 (N.Y.App.Div. 2000) (granting defendant summary judgment in part on physician's conclusion that neck was supple); see also Mejia v. Leisure Time Tours, No. 01 Civ. 0263, 2002 WL 1732887, at *3 (E.D.N.Y. July 24, 2002). Further, Dr. Weintraub found plaintiffs straight leg examination to be negative and she had equal strength in all four extremities.

  3. Blanchard v. Wilcox

    283 A.D.2d 821 (N.Y. App. Div. 2001)   Cited 195 times

    Plaintiff's submissions are insufficient to establish that he suffered a significant limitation of use of a body function or system or an injury in the 90/180-day category. Although Dispo's affidavit referred to limited range of motion, spasms, tightness and trigger points, it failed to provide any quantification or detail as to how these findings were objectively ascertained or to identify any diagnostic tests relied upon, merely observing that plaintiff "was able to move his neck only minimally" (see, Pantalone v. Goodman, 281 A.D.2d 790, 722 N.Y.S.2d 291; Rose v. Furgerson, supra;Hines v. Capital Dist. Transp. Auth., 280 A.D.2d 768, 770, 719 N.Y.S.2d 777, 779; Gillick v. Knightes, 279 A.D.2d 752, 752-753, 719 N.Y.S.2d 335, 336; Evans v. Beebe, 267 A.D.2d 828, 829, lv denied 94 N.Y.2d 762; see also, Licari v. Elliott, supra, at 239; cf.,McCarthy v. Perault, 277 A.D.2d 664, 665-666; Barbagallo v. Quackenbush, 271 A.D.2d 724, 725; McGuirk v. Vedder, 271 A.D.2d 731, 732). A "significant" limitation of use requires something more than a minor limitation of use (see, Licari v. Elliott, supra, at 236), and plaintiff's subjective complaints of pain and medical opinions based thereon are not sufficient to establish a serious injury (see, Crandall v. Sledziewski, 260 A.D.2d 754, 757, lv denied 93 N.Y.2d 811; see also,Gaddy v. Eyler, 79 N.Y.2d 955, 957, supra; Tankersley v. Szesnat, 235 A.D.2d 1010, 1011).

  4. Russell v. Cornell Univ.

    2012 N.Y. Slip Op. 33912 (N.Y. Sup. Ct. 2012)

    aintiff experienced restricted ranges of motion for more than three years are sufficient to permit a finding of significant limitation of use - which need not be permanent (see Preston v Young, 239 AD2d 729, 731 - 732 [1997]) - notwithstanding his determination that plaintiff no longer experiences neck pain (see Corey Affidavit, attached affirmed written report dated February 22, 2010 [sic] [reporting an examination conducted on February 22, 2011], pp. 2 [plaintiff stated that she no longer has neck pain], 3 [orthopedic tests formerly positive for local neck and back pain were positive for only back pain]). Accordingly, viewed in the light most favorable to plaintiff, Corey's opinion is minimally sufficient to meet her burden of demonstrating the existence of triable issues of fact with respect to her claim to have sustained a serious injury in the form of significant limitation of use to her cervical spine (see MacMillan, 82 AD3d 1388; see also Peterson v Cellery, 93 AD3d 911 [2012]; McCarthy v Perault, 277 AD2d 664 [2000]). Based on the foregoing, defendant's summary judgment motion must be, and hereby is, denied.