Gillick v. Knightes

• Decision Date: 11 January 2001
• Citation: Gillick v. Knightes, 279 A.D.2d 752, 719 N.Y.S.2d 335 (N.Y. App. Div. 2001)
• Court: New York Supreme Court — Appellate Division
• Parties: KATHLEEN GILLICK et al., Appellants,<BR>v.<BR>STEVEN J. KNIGHTES, Respondent.

279 A.D.2d 752

719 N.Y.S.2d 335

KATHLEEN GILLICK et al., Appellants,

v.STEVEN J. KNIGHTES, Respondent.

Mugglin, J.

Decided January 11, 2001.

Mercure, J.P., Crew III and Rose, JJ., concur.

Mugglin, J.

In October 1996, a vehicle operated by plaintiffKathleen Gillick(hereinafter plaintiff) was the first of three stopped at a red light.When the light turned green, defendant accelerated and collided with the second vehicle, which struck plaintiff's vehicle in the rear.Plaintiff and her husband, derivatively, commenced this action.After joinder of issue and discovery defendant moved for summary judgment, claiming that plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d).Supreme Court determined that plaintiffs failed to rebut defendant's prima facie showing that plaintiff did not suffer a "serious injury" and granted defendant's motion for summary judgment dismissing the complaint.Plaintiffs appeal and we affirm.

With the exception of a finding of some spasm made by plaintiff's treating orthopedic surgeon two days postaccident (and arguably six days later when he reported no change in physical findings), this record is completely devoid of competent medical evidence, based on objective findings and diagnostic tests, to demonstrate that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d)(see, Fountain v Sullivan,261 AD2d 795;Tankersley v Szesnat,235 AD2d 1010;Van De Bogart v Vanderpool,215 AD2d 915).The record reveals that she was diagnosed with cervical sprain and strain and that she has a resultant loss of cervical range of motion.However, her X-rays, MRI, EMG and nerve conduction study all revealed no evidence of injury and were within normal ranges.

We have repeatedly held that a diagnosis of loss of range of motion, because it is dependent on the patient's subjective expressions of pain, is insufficient to support an objective finding of a serious injury (see, Wiley v Bednar,261 AD2d 679;Broderick v Spaeth,241 AD2d 898, 900, lv denied91 NY2d 805).Moreover, plaintiff's reliance on her orthopedic surgeon's affidavit submitted in opposition to defendant's motion for summary judgment is misplaced.In the affidavit, the doctor stated that plaintiff"is unable to flex her neck forward or rotate toward the left."This sworn statement was made based on his physical and X-ray examination of plaintiff done on May 22, 1998.Then, however, the doctor stated only that based on his physical examination, plaintiff"has discomfort with any attempt at forward flexion and rotation toward the left."On X-ray examination he did state that plaintiff's "flexion/extension views are limited," not showing "any significant flexion whatsoever, except at the C1-2/2-3 levels."This examination was dependent upon the cooperation of plaintiff and is impacted by the subjective complaints of pain and willingness of plaintiff to flex or extend her cervical spine.Moreover, the doctor reported no objective evidence shown by the X-ray which would account for this lack of flexion.

Lahtinen, J. (dissenting).

I respectfully dissent.The record reflects that plaintiff's orthopedic specialist found muscle spasms upon examination of plaintiffKathleen Gillick(hereinafter plaintiff) two days postaccident and found no change in plaintiff's physical exam eight days postaccident.Approximately one year postaccident, plaintiff's neurologist concluded that she"had a lot of cervical muscle tightness causing incomplete relaxation of the paracervical muscles" and attributed these symptoms to musculoskeletal injury.We have previously held that "findings of areas of spasm and trigger points"(Larrabee v State of New York,216 AD2d 772, 773) that were objectively ascertained and quantified constitute objective indicia of a serious injury (see, also, Weaver v Howard,206 AD2d 793;Stanavich v Pakenas,190 AD2d 184, lv denied82 NY2d 659).

Moreover, plaintiff's orthopedist and neurologist both noted limitation and restriction of plaintiff's neck rotation and flexion throughout their reports.Additionally, the May 10, 1999 report of defendant's expert reveals that upon examination plaintiff"had minimal flexion of her neck and minimal rotation.She did externally rotate to 40...