Clements v. Lasher

• Decision Date: 03 February 2005
• Docket Number: 96248.
• Citation: 788 N.Y.S.2d 707,2005 NY Slip Op 00622,15 A.D.3d 712
• Parties: KATHLEEN CLEMENTS et al., Appellants v. TRACY A. LASHER et al., Respondents.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 712

788 N.Y.S.2d 707

2005 NY Slip Op 00622

KATHLEEN CLEMENTS et al., Appellants v.TRACY A. LASHER et al., Respondents.

96248.

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 3, 2005.

Appeal from an order of the Supreme Court(Nolan, Jr., J.), entered March 30, 2004 in Saratoga County, which granted defendants' motion for summary judgment dismissing the complaint.

Mugglin, J.

In July 2002, plaintiffs commenced this action for personal injuries allegedly sustained by plaintiffKathleen Clements on September 1, 1999 when her vehicle was struck from behind by one owned by defendantTracy Lasher and operated by defendantJohn Pailley.Neither vehicle was damaged by the impact and, as no one was apparently injured, Clements and Pailley exchanged insurance information and left the scene.Upon completion of discovery, Supreme Court granted defendants' motion for summary judgment dismissing the complaint, finding that plaintiffs had failed to demonstrate a triable issue of fact as to whether Clements sustained a serious injury within the meaning of Insurance Law § 5102 (d).Plaintiffs appeal and we affirm.

As plaintiffs do not challenge the sufficiency of defendants' medical evidence as meeting the threshold burden (seeMarks v Brown,3 AD3d 648, 648-649[2004];Seymour v Roe,301 AD2d 991, 991-992[2003]), the issue becomes whether plaintiffs' evidence met the shifted burden of raising a triable issue of fact that Clements suffered a compensable serious injury (seeInsurance Law § 5102 [d];Marks v Brown, supra;Mrozinski v St. John,304 AD2d 950, 951[2003]).Plaintiffs claim that their evidence raises triable issues of fact as to whether Clements sustained a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system, and an injury which is covered by the 90/180-day category.Plaintiffs maintain that Clements' affidavit, her attorney's affidavit and the affidavit of her treating chiropractor to which is attached certain records of treatment, establish her impairment by objective medical findings and diagnostic tests in each of the three categories specified (seeBuster v Parker,1 AD3d 659, 660[2003];Drexler v Melanson,301 AD2d 916, 917[2003]).

To establish either permanent consequential limitation or a significant limitation, the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones (seeToure v Avis Rent A Car Sys.,98 NY2d 345, 350[2002]).Here, as Clements' treating chiropractor made no quantitative assessment, we review the qualitative assessment to determine if the chiropractor's evaluation of Clements has "an objective basis" and if a comparison of her limitations to the normal function has been made (id. at 350-351).The record reveals that the chiropractor, upon palpation, observed muscle spasms in Clements' neck, shoulder and back — the areas claimed to be injured in the accident — which the chiropractor claims were confirmed by electromyography testing.This evidence of spasm is an objective medical finding (seeSantos v Marcellino,297 AD2d 440, 441-442[2002]).Absent,...