Lopez v. Senatore

• Decision Date: 12 September 1985
• Citation: 484 N.E.2d 130,65 N.Y.2d 1017,494 N.Y.S.2d 101
• Parties: , 484 N.E.2d 130 Augustin LOPEZ, Appellant, v. Mark SENATORE et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 101

494 N.Y.S.2d 101

65 N.Y.2d 1017, 484 N.E.2d 130

Augustin LOPEZ, Appellant, v. Mark SENATORE et al., Respondents.

Court of Appeals of New York.

Sept. 12, 1985.

Glenn E. Kushel, Brooklyn, for appellant.

A. Paul Goldblum, Brooklyn, for respondents.

OPINION OF THE COURT MEMORANDUM.

The judgment insofar as appealed from and order of the Appellate Division, 97 A.D.2d 787, 468 N.Y.S.2d 527, insofar as brought up for review should be reversed, with costs, and the order of Supreme Court, Kings County, insofar as it denied both parties summary judgment on the first cause of action reinstated.

In this action to recover damages for personal injuries sustained when defendants' car backed into plaintiff's parked car, defendants sought summary judgment on the ground that there was no "serious injury" within the meaning of Insurance Law § 671(4) (now § 5102[d] ). Plaintiff offered the affidavit of his treating physician stating that, based on the doctor's examination and treatment of plaintiff over the course of one year, his medical opinion was that plaintiff continued to suffer from "[t]rauma to the left side of the skull, with contusions, pain, cerebral concussion and post-concussion, cepahlgia and vertigo; [c]ervical derangement with sprain, strain, severe spasms and torticollis, with painful and significantly limited rotation to the right or left of only 10 deg. with pain radiating into the left shoulder and left arm, along the ulnar nerve due to nerve irritation and damage, and causing hypesthesias, paresthesias and 'pins and needles' in the 4th and 5th fingers of the left hand with weakened grasp of the left hand; and [p]aravertebral muscle spasms with pain"; that all of the foregoing injuries were produced by the automobile accident; that based on the existence of the injuries and their sequellae for more than one and a half years, the injuries were permanently disabling; that plaintiff's neck, back and left hand were permanently injured and would have a permanent limitation of motion, and thus fit the definition of serious injury under Insurance Law § 671(4) (now § 5102[d] ) as an injury resulting in a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system. Attached to this affidavit were the doctor's medical report, including diagnosis, dates and descriptions of eight months of treatment, and the prognosis "guarded permanent disability with restriction of motion." Defendants, in opposition to plaintiff's motion for partial summary judgment and in support of their own cross motion for summary judgment, submitted reports by two other doctors disputing the conclusions of plaintiff's doctor as to the extent of the injuries and disabilities.

Special Term denied summary judgment to both parties, finding that the conflicting medical opinions...