Cummings v. Riedy

• Decision Date: 11 February 2004
• Docket Number: CA 03-01139.
• Citation: 4 A.D.3d 811,771 N.Y.S.2d 629,2004 NY Slip Op 00807
• Parties: TREMEEKA CUMMINGS, Appellant, v. PETER B. RIEDY, JR., Respondent.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 811

771 N.Y.S.2d 629

2004 NY Slip Op 00807

TREMEEKA CUMMINGS, Appellant, v. PETER B. RIEDY, JR., Respondent.

CA 03-01139.

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

February 11, 2004.

Appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered March 3, 2003. The order granted defendant's motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the complaint with respect to the significant limitation of use of a body function or system and 90/180 categories of serious injury within the meaning of Insurance Law § 5102 (d) and as modified the order is affirmed without costs.

Memorandum:

Plaintiff commenced this action seeking damages for injuries she sustained when a vehicle driven by defendant struck her vehicle. She appeals from an order granting defendant's motion seeking summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the motor vehicle accident. We agree with plaintiff that Supreme Court erred in granting defendant's motion with respect to the significant limitation of use of a body function or system category of serious injury as well as the 90/180 category but conclude that the court properly granted defendant's motion with respect to the categories of permanent loss of use of a body organ, member, function or system and permanent consequential limitation of use of a body organ or member. With respect to the latter two categories, we conclude that defendant met his initial burden and that plaintiff failed to raise an issue of fact whether she sustained a permanent, i.e., total, loss of use of her cervical and thoracic spine (see Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). Although her treating chiropractor stated in his affidavit that, based upon his treatment of plaintiff and objective tests he performed, plaintiff sustained a permanent limitation of use of her cervical and thoracic spine, he described the permanent limitation as "minimal to mild," which is insufficient to sustain a claim of serious injury (see Licari v Elliott, 57 NY2d 230, 236 [1982]).

We conclude, however, that the affidavit of plaintiff's treating chiropractor is sufficient to raise an issue of fact whether plaintiff sustained a significant limitation of use of her cervical and thoracic spine. He stated therein that palpation revealed subluxation along the cervical...