Summary
In Nathanson, defendants satisfied their initial burden by submitting the report of a neurologist who examined plaintiff in August of 1995. Ibid. Plaintiff, however, raised an issue of fact by submitting the report of a chiropractor who opined that plaintiff experienced specified limitations as of the last day of plaintiff's treatment in October of 1992. Ibid. Despite the three years that had lapsed between the time of plaintiff chiropractor's examination and the examination conducted by the defendant's medical expert, the Appellate Division held that a fact issue remained as to the duration of plaintiff's significant limitation.
Summary of this case from Heisler v. MPT New York, Inc.Opinion
November 19, 1997
(Appeal from Order of Supreme Court, Erie County, Mahoney, J. — Summary Judgment.)
Present — Denman, P. J., Green, Wisner, Balio and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. Plaintiff seeks damages for injuries that he sustained in an automobile accident in November 1991. On this record, it cannot be determined as a matter of law whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d). Defendants met their initial burden by submitting the report of a neurologist who examined plaintiff in August 1995 and found that he had a full range of motion of the cervical spine. Plaintiff raised an issue of fact, however, based upon the affidavit of the chiropractor who treated him from December 1991 until October 1992. The chiropractor conducted several physical examinations during that period and measured significant restrictions in the flexion, extension and rotation of plaintiff's cervical spine. In his opinion, those injuries remained on the last day of treatment on October 16, 1992. Thus, "[o]nly after all the facts are developed upon the trial, including the duration of the limitation and the effect it had upon the plaintiff, can it be determined * * * whether the plaintiff suffered a significant limitation of use within the meaning of the No-Fault Law" ( Hayes v. Riccardi, 97 A.D.2d 954; see, Parker v. Defontaine-Stratton, 231 A.D.2d 412; Pareti v Giglietta, 221 A.D.2d 607).