Nitti v. Clerrico
| Decision Date | 01 February 2002 |
| Docket Number | 4,01-01377 |
| Parties | BRENDA M. NITTI,, v JOSEPHINE CLERRICO AND JOSEPH C. CLERRICO,AL., DEFENDANTS. CA 01-01377 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
LAW OFFICES OF CRAIG P. NIEDERPRUEM, UTICA (CRAIG P. NIEDERPRUEM OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
PETER J. DI GIORGIO, JR., UTICA, FOR PLAINTIFF-RESPONDENT.
Appeal from a judgment of Supreme Court, Oneida County (Shaheen, J.), entered January 18, 2001, which upon a jury verdict awarded plaintiff $45,000, plus costs and disbursements.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed without costs.
Memorandum: Supreme Court properly denied defendants' motion seeking to set aside the jury verdict on the ground that plaintiff did not prove that she sustained a serious injury within the meaning of Insurance Law § 5102 (d). The jury found that plaintiff sustained a serious injury under the 90/180-day category of Insurance Law § 5102 (d).
At trial, plaintiff presented the testimony of a chiropractor who examined her on two occasions on behalf of her no-fault carrier. During the first examination, conducted five months after the accident, the chiropractor conducted neurological and orthopedic screening tests. He detected, by sight and by touch, spasm in the right cervical spine that radiated into the shoulders. In addition, he performed the Soto-Hall's test, which produced pain; the foramina-compression test, which produced localized pain in the cervical spine; the Valsalva test, which produced pain in the lumbar spine region; the Adams test, which produced pain at 80 degrees of flexion; the Yeoman's test, from which he determined a restriction of movement; and the straight-leg raising test, which produced pain at 70 degrees of hip flexion. Based on those standard medical tests, of which there are both objective and subjective components, the chiropractor determined that plaintiff sustained a lumbosacral, sacroiliac, and cervical sprain/strain, indicating tissue damage to both muscle and ligament in the cervical and lumbar spine and resulting in a mild, partial disability. The chiropractor conducted a second examination 10 months after the accident and repeated the above tests. In addition, he reviewed the results of an MRI performed at the request of plaintiff's treating chiropractor. Following the second examination, the chiropractor diagnosed an L4-5 intervertebral disk disorder with associated neuritis. He determined that plaintiff was moderately, partially disabled, was unable to perform her normal daily functions, and was restricted in lifting.
Spasms are "objective evidence of the injury causing the disability" (Hines v Capital Dist. Transp. Auth., 280 A.D.2d 768, 771). Furthermore, the chiropractor's observations of actual, quantified limitations are "more than [a] mere reiteration of plaintiff's subjective complaints of pain" and thus constitute objective evidence of a medically determined injury or impairment within the meaning of Insurance Law § 5102 (d) (O'Sullivan v Atrium Bus Co., 246 A.D.2d 418, 420; see, Parker v Defontaine-Stratton, 231 A.D.2d 412, 413). Thus, if credited by the jury, the objective evidence of spasm, seen and felt by the chiropractor on examination, as well as the results of medically recognized tests that require the patient to participate in the diagnosis by telling the chiropractor when pain is experienced, establish that plaintiff sustained a medically determined injury that impaired her activities for the requisite period of time within the meaning of the 90/180-day category of serious injury.
All concur except Scudder and Lawton, JJ., who dissent and vote to reverse in the following Memorandum:
The issue raised on this appeal by Josephine Clerrico and Joseph C. Clerrico (defendants) from a judgment entered upon a jury verdict for plaintiff is whether plaintiff established a prima facie case that she sustained a serious injury within the meaning of Insurance Law § 5102 (d). We conclude that she did not, because she failed to establish by objective medical evidence that she sustained a serious injury within the meaning of the statute (see, Brown v Wagg, 280 A.D.2d 891, 891-892, lv denied 96 N.Y.2d 711). "To establish the existence of a serious injury under Insurance Law § 5102 (d), 'it is incumbent upon the plaintiff to * * * [adduce] competent and admissible medical evidence based on objective medical findings and diagnostic tests which support a claim of serious injury'" (Conahan v Sanford, 284 A.D.2d 749, 750, quoting Anderson v Persell, 272 A.D.2d 733, 734). "The expert must provide a basis for his or her conclusion by quantifying the loss or limitation, or otherwise demonstrating that it is meaningful" (Anderson v Persell, supra, at 734; see, Skellham v Hendricks, 270 A.D.2d 619, 620). "In the absence of such proof, a plaintiff's subjective complaints of pain are insufficient" (Anderson v Persell, supra, at 734; see also, Gaddy v Eyler, 167 A.D.2d 67, 71, affd 79 N.Y.2d 955; Crandall v Sledziewski, 260 A.D.2d 754, 757, lv denied 93 N.Y.2d 811). Testimony of a medical expert that "fails to explain the objective tests that were performed, or to offer objective medical proof of injury, will not suffice" in establishing that plaintiff sustained a serious injury (Watt v Eastern Investigative Bur., 273 A.D.2d 226, 227). An expert's observations must be "supported by objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on a neurological examination" (Grossman v Wright, 268 A.D.2d 79, 84).
The only expert medical testimony presented...
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