Parkhill v. Cleary
| Decision Date | 02 May 2003 |
| Citation | 305 A.D.2d 1088,759 N.Y.S.2d 262 |
| Parties | NICOLE A. PARKHILL, Respondent-Appellant, et al., Plaintiff,<BR>v.<BR>JOHN M. CLEARY et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Present — Pigott, Jr., P.J., Pine, Hurlbutt, Lawton and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of defendants' motion with respect to the category of permanent consequential limitation of use of a body organ or member and reinstating the complaint with respect to that category of serious injury and as modified the order is affirmed without costs.
Defendants appeal and Nicole A. Parkhill (plaintiff) cross-appeals from an order granting in part defendants' motion for summary judgment dismissing the complaint. Plaintiff was allegedly injured when the vehicle that she was driving collided with a vehicle driven by John M. Cleary (defendant) (see Insurance Law § 5102 [d]). Supreme Court dismissed the complaint to the extent that it alleges that plaintiff sustained a serious injury under the categories of permanent consequential limitation of use of a body organ or member, 90/180 days, and permanent loss of use of a body organ, member, function or system but otherwise denied the motion.
We conclude that the court properly denied that part of the motion with respect to the category of significant limitation of use of a body function or system but erred in granting that part of the motion with respect to the category of permanent consequential limitation of use. With respect to those two categories of serious injury, "[w]hether a limitation of use or function is significant or consequential (i.e., important * * *) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002] [internal quotation marks omitted]). There must be objective proof of plaintiff's injury (see id. at 350). In addition, the expert must provide either "a numeric percentage of a plaintiff's loss of range of motion" or a "qualitative assessment of a plaintiff's condition * * *, provided that the evaluation * * * compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (id.).
Defendants met their initial burden with respect to those two categories of serious injury by the affidavit of their expert, who opined that plaintiff had a soft tissue injury that had resolved and that there was no objective medical evidence that plaintiff sustained a significant or permanent injury in the motor vehicle accident (see Sewell v Kaplan, 298 AD2d 840 [2001]; Hassam v Rock, 290 AD2d 625 [2002]; Monk v Dupuis, 287 AD2d 187, 188-189 [2001]). Contrary to plaintiff's contention, the technical defects in the jurat of the affidavit of defendants' expert do not invalidate the official act of the notary public (see Executive Law § 137). We agree with plaintiff, however, that she raised a triable issue of fact with respect to those two categories of serious injury by submitting the affidavit of her chiropractor and the affirmation of her doctor, along with their accompanying reports (see Toure, 98 NY2d at 352). Plaintiff's chiropractor and doctor each had examined plaintiff shortly after defendants moved for summary judgment, and each relied upon objective evidence of plaintiff's injury and provided numeric percentages of plaintiff's loss of range of motion as well as qualitative assessments of plaintiff's condition. In addition, each opined that plaintiff's injuries were permanent and significant. We thus modify the order by denying that part of defendants' motion with respect to the category of permanent consequential limitation of use of a body organ or member and reinstating the complaint with respect to that category of serious injury.
The court properly granted that part of defendants' motion with respect to the 90/180 category of serious injury. With respect to that category, there must be evidence that plaintiff's activities were curtailed to a great extent (see Licari v Elliott, 57 NY2d 230, 236 [1982]; Sands v Stark, 299 AD2d 642, 642-643 [2002]; Van Norden-Lipe v Hamilton, 294 AD2d 749 [2002]). In addition, there must be objective evidence of "a medically determined injury or impairment of a non-permanent * * * nature" (Insurance Law § 5102 [d]; see Nitti v Clerrico, 98 NY2d 345, 357 [2...
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