Frier v. Teague

• Decision Date: 05 November 2001
• Citation: 288 A.D.2d 177,732 N.Y.S.2d 428
• Parties: MARILYN FRIER, as Trustee of the Estate of STEVEN SOARES, et al., Appellants,<BR>v.<BR>NANCY M. TEAGUE, Respondent.
• Court: New York Supreme Court — Appellate Division

288 A.D.2d 177

732 N.Y.S.2d 428

MARILYN FRIER, as Trustee of the Estate of STEVEN SOARES, et al., Appellants,

v.NANCY M. TEAGUE, Respondent.

Decided November 5, 2001.

O'Brien, J. P., Krausman, Goldstein, Schmidt and Crane, JJ., concur.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion and cross motion which were for summary judgment dismissing the complaint insofar as asserted by Margo Soares and substituting therefor provisions denying those branches of the motion and cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant met her initial burden of establishing, as a matter of law, that Steven Soares did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (see, Gaddy v Eyler, 79 NY2d 955; Licari v Elliott, 57 NY2d 230, 236). The treating chiropractor's projections of permanent limitations, which were based on examinations conducted almost three years before the motion, had no probative value in the absence of a recent examination (see, Bidetto v Williams, 276 AD2d 516; Mohamed v Dhanasar, 273 AD2d 451; Kauderer v Penta, 261 AD2d 365; Evans v Mohammad, 243 AD2d 604), and failed to specify the extent or degree of limitation in the range of motion in his spine (see, Lupo v Cheung, 236 AD2d 594; Lichtman-Williams v Desmond, 202 AD2d 646).

However, the defendant failed to make a prima facie showing that Margo Soares did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The conclusion reached by the defendant's physicians that Margo Soares did not sustain a serious injury, which was based on examinations performed more than three years after the accident, was insufficient to establish she did not sustain a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for a period of not less than 90 days during the 180 day period immediately following the accident (see, DePetres v Kaiser, 244 AD2d 851). Moreover, Margo Soares's testimony at her examination before trial and the affidavit of the treating chiropractor were sufficient to establish a triable issue of fact as to whether she suffered from a medically determined injury that curtailed her from performing her usual activities "to a great extent rather than some slight...