Parker v. Defontaine-Stratton, DEFONTAINE-STRATTON
| Decision Date | 12 September 1996 |
| Docket Number | DEFONTAINE-STRATTON |
| Citation | 647 N.Y.S.2d 189,231 A.D.2d 412 |
| Parties | Nicole PARKER, etc., et al., Plaintiffs-Appellants, v. Rev. James B., et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Raymond B. Schwartzberg, for plaintiffs-appellants.
Janet D. Cebula, for defendants-respondents.
Before MILONAS, J.P., and ELLERIN, KUPFERMAN, TOM and MAZZARELLI, JJ.
Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered August 21, 1995, which granted defendant Rev. James B. Defontaine-Stratton's motion for summary judgment and dismissed the complaint as against him, is unanimously reversed, on the law, without costs, the motion is denied and the complaint is reinstated.
In order to establish a prima facie case, plaintiff must establish that she has suffered a "serious injury" within the meaning of Insurance Law § 5102(d) (Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Lopez v. Senatore, 65 N.Y.2d 1017, 1019-1020, 494 N.Y.S.2d 101, 484 N.E.2d 130; Orlando v. Medhurst, 212 A.D.2d 764, 624 N.Y.S.2d 861). In that vein, a medical affidavit which demonstrates that the plaintiff's limitations have been objectively measured or quantified is sufficient (cf., Deangelo v. Marcia Serv. Corp., 199 A.D.2d 58, 605 N.Y.S.2d 31; Forte v. Vaccaro, 175 A.D.2d 153, 572 N.Y.S.2d 41). Further, a physician's observations as to actual, quantified limitations in the plaintiff's ability to use a body function or system qualify as "objectively measured or quantified" (Deangelo v. Marcia Serv. Corp., supra, at 59, 605 N.Y.S.2d 31), since they are based on the doctor's own examination, not the plaintiff's subjective complaints (Cesar v. Felix, 181 A.D.2d 852, 853, 581 N.Y.S.2d 411; Torres v. Micheletti, 208 A.D.2d 519, 520, 616 N.Y.S.2d 1006).
In the matter before us, Dr. Greenbaum averred that plaintiff suffered a loss in the range of motion in her shoulder of 10 degrees of flexion, 40 degrees of abduction, 30 degrees of internal rotation, and 30 degrees of external rotation. These quantified limitations were purported to be based on Dr. Greenbaum's examination of plaintiff. Further, Dr. Greenbaum's reports and affidavit indicate that plaintiff had been receiving physical therapy treatments at his office. In sum, the foregoing is sufficient to establish a prima facie case that plaintiff sustained a "serious injury" (see, Mendola v. Demetres, 212 A.D.2d 515, 622 N.Y.S.2d 309), and a...
To continue reading
Request your trial
-
Williams v. Ritchie
...satisfactory. Merisca v. Alford, 243 A.D.2d 613, 663 N.Y.S.2d 853, 854 (2d Dep't 1997): see also Parker v. Defontaine-Stratton, 231 A.D.2d 412, 647 N.Y.S.2d 189, 190 (1st Dep't 1996) ("[A] medical affidavit which demonstrates that the plaintiff's limitations have been objectively measured o......
-
Meyer v. Afgd, Inc.
...See, e.g., Lopez, 494 N.Y.S.2d 101, 484 N.E.2d at 131 (10 degree limitation on neck movement); Parker v. Defontaine-Stratton, 231 A.D.2d 412, 647 N.Y.S.2d 189, 190 (N.Y.A.D. 1st Dep't 1996) (quantified limitations in movement based on physical examination sufficient); Moreno v. Delcid, 262 ......
-
Mobley v. J. Foster Phillips Funeral Home, Inc.
...New York City Transit Authority, 259 A.D.2d 261 [1st Dept 1999] ; Tompkins v. Budnick, 236 A.D.2d 708 [3d Dept 1997] ; Parker v. DeFontaine, 231 A.D.2d 412 [1st Dept 1996] ; DiLeo v. Blumberg, 250 A.D.2d 364 [1st Dept 1998] ). For example, in Parker, supra, it was held that a medical affida......
-
Noble v. Ackerman
...593; Puma v. Player, 233 A.D.2d 308, 649 N.Y.S.2d 461; Thomas v. Hulslander, 233 A.D.2d 567, 649 N.Y.S.2d 252; Parker v. Defontaine-Stratton, 231 A.D.2d 412, 647 N.Y.S.2d 189). It was error, however, to refuse defendant's request to submit the question of whether plaintiff sustained serious......