Dwyer v. Tracey
| Decision Date | 11 October 1984 |
| Citation | 105 A.D.2d 476,480 N.Y.S.2d 781 |
| Parties | Nora A. DWYER, Appellant, v. Matthew TRACEY et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Seymour Fox, P.C., Troy (Neil F. Woodworth, Troy, of counsel), for appellant.
Hesson, Ford, Sherwood & Whalen, Albany (Michael J. Hutter, Albany, of counsel), for respondents.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered November 18, 1983 in Rensselaer County, which granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff commenced this action on August 18, 1981 to recover damages for personal injuries allegedly sustained on August 30, 1979, when her automobile was struck from behind by an automobile owned by defendant John Tracey and operated by defendant Matthew Tracey. After issue was joined, Special Term granted defendants' motion for summary judgment on the ground that plaintiff had not sustained a "serious injury" as defined in section 671 (subd. 4) of the Insurance Law. This appeal ensued.
Upon a contested motion for summary judgment, the court must determine in the first instance, as a matter of law, whether plaintiff has made a prima facie showing of a "serious injury" (Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088). Here, plaintiff relies on two of the categories of serious injury listed in subdivision 4 of section 671 of the Insurance Law, specifically "permanent loss of use of a body organ, member, function or system" and "permanent consequential limitation of use of a body organ or member". The record reveals that plaintiff received emergency room treatment for complaints of head and neck pains on the night of the accident. X rays of her neck and back were negative for fractures. She was diagnosed as having a cervical muscle strain, instructed to wear a cervical collar, given a prescription for pain medication and released. She missed three days of work and curtailed certain of her recreational activities. Thereafter, she was treated on three separate occasions during October, 1979 by Dr. Alfred A. Frankel for cervical whiplash and was released as asymptomatic. On August 14, 1980, plaintiff was involved in a second automobile accident in which she again sustained neck injuries. Thereafter, plaintiff was examined by Dr. David Green and Dr. Stanley Ball, who both indicated that she was imagining her headaches. A third examining physician, Dr. James Furlong, rendered medical reports of plaintiff's condition on September 22, 1982, March 21, 1983 and July 24, 1983. In the initial report, Dr. Furlong indicated the injury would slowly resolve but, in the event plaintiff's neck symptoms persisted, she would "be left with a mild, permanent, partial disability" (emphasis added). It appears plaintiff reinjured her neck in January, 1983 while shoveling snow. In his second report, Dr. Furlong determined this new injury had resolved, but repeated his initial diagnosis and attributed causation to the August, 1980 automobile accident. In his final report, Dr. Furlong clarified his previous analysis of chronic posterior cervical muscle strain by attributing causation to both automobile accidents. In opposition to the motion for summary judgment, plaintiff submitted her personal affidavit reiterating the history outlined above, and attesting to the persistence of her injuries and limitation of activities. She characterized her injury as "a pulling sensation, stiffness and pain of her neck and trapezius muscle area on neck rotation, particularly during the course of her employment". The reports of Dr. Furlong, in depositional form, were also submitted by plaintiff.
Having reviewed the record, we conclude that plaintiff failed to establish by competent medical proof a "permanent loss" or "permanent consequential limitation of use of a body organ or member". We recognize that "permanent loss" does not necessitate proof of a total loss of the "organ, member, function system", but only proof that it "operates in some limited way, or operates only with pain" (Mooney v. Ovitt, 100 A.D.2d 702, 703, 474 N.Y.S.2d 618). Some degree of permanency...
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