Passonno v. Hall
| Decision Date | 04 December 1986 |
| Citation | 509 N.Y.S.2d 189,125 A.D.2d 767 |
| Parties | David G. PASSONNO, Respondent, v. Joanne HALL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Maynard, O'Connor & Smith (Rogert J. Cusick, of counsel), Albany, for appellant.
Seymour Fox, P.C. (Neil F. Woodworth, of counsel), Troy, for respondent.
Before MAIN, J.P., and CASEY, HARVEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term (Cobb, J.), entered December 5, 1985 in Albany County, which denied defendant's motion for summary judgment dismissing the complaint.
In 1981, plaintiff was injured while a passenger in an automobile owned by defendant which was involved in a one-car accident. He was hospitalized and objective evidence revealed a loss of the normal lordotic curvature of the spine. After discharge, he continued to receive medical treatment from his personal physician as well as an orthopedic surgeon.
This personal injury action was commenced in October 1983. Defendant moved for summary judgment to dismiss the complaint on the ground that plaintiff failed to establish the "serious injury" threshold of Insurance Law § 5102(d). To support her motion, defendant submitted an affidavit from a doctor who had been retained by her insurance company and who had seen plaintiff on only one occasion. His stated opinion was that plaintiff had suffered no permanent injury.
In opposition to the motion, plaintiff submitted, inter alia, an affidavit from the orthopedic surgeon who had been treating him for over 3 1/2 years. The doctor stated that, upon review of plaintiff's medical records and based on his own diagnosis, plaintiff had sustained a head injury, laceration of the posteroparietal area, cerebral concussion, a locked facet syndrome and chronic cervical strain. The doctor had engaged in a continuous course of treatment of plaintiff which included prescribed medication, moist heat treatments and conditioning exercises for both the cervical and lumbrosacral spine regions. On his last examination of plaintiff before his July 29, 1985 affidavit, the orthopedist found objective evidence of a continuation of the spinal disability. He stated that he was still attempting to rehabilitate plaintiff's lumbosacral and cervical spine but could not determine whether this effort would be successful in alleviating plaintiff's disability. Consequently he was unable to state at that time whether the injury was permanent.
Special Term denied defendant's motion to dismiss the complaint and this appeal ensued.
Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue (Millerton Agway Coop. v. Briarcliff Farms, 17 N.Y.2d 57, 61, 268 N.Y.S.2d 18, 215 N.E.2d 341; Denton Pub. v. Lilledahl, 112 A.D.2d 658, 492 N.Y.S.2d 171) or where the issue is arguable (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387; Waldron v. Wild, 96 A.D.2d 190, 192, 468 N.Y.S.2d 244). All competent evidence must be viewed in the light most favorable to the party opposing the motion (Merlis v. Lupo, 108 A.D.2d 902, 485 N.Y.S.2d 787; 4 Weinstein-Korn-Miller, NY Civ Prac p 3212.12). It is axiomatic that " 'issue-finding, rather than issue-determination, is the key to the procedure' " (Sillman v. Twentieth Century-Fox Film Corp., supra, 3 N.Y.2d p. 404, 165 N.Y.S.2d 498, 144 N.E.2d 387, quoting Esteve v. Abad, 271 App.Div. 725, 727, 68 N.Y.S.2d 322; accord, Siegel, Practice Commentaries, McKinney's Cons.Law of N.Y. Book 7B, C3212:2, p. 425).
In order for us to grant the relief sought by defendant, we must be convinced that plaintiff has failed to raise a question of fact as to whether he sustained any significant or permanent injuries. We are unable to make such a conclusion in view of the fact that plaintiff presently is being treated and has been treated for over 3 1/2 years but continues to show objective signs of his injuries. The fact that his doctor is not yet able to state conclusively that the injuries will be permanent does not necessitate a judicial determination at this time that a prima facie showing of serious injury has not been made (see, Savage v. Delacruz, 100 A.D.2d 707, 474 N.Y.S.2d 850). It would be improvident to punish plaintiff for the conscientiousness of his doctor who continues with treatments in the hope that recovery will be made. Further, we are unable to conclude as a matter of law that the injuries suffered were not significant. To do so we would have to give undue credence to the single examination made by defendant's doctor. On a motion for summary judgment, such a factual determination would not be proper. In our opinion, Special Term was justified in denying the motion. Defendant is not prejudiced by this decision. The issue of legal sufficiency of the proof will be decided by the court either at trial or by motion pursuant to one of the conditions established by Special Term's decision.
Order affirmed, without costs.
The sole issue on this appeal is whether Special Term properly denied defendant's motion for summary judgment, dated June 24, 1985, for failure to meet the threshold requirement of a "serious injury" as required by Insurance Law § 5102(d). Whether plaintiff has made a prima facie showing of a "serious injury" is, of course, a matter for the court to decide in the first instance (see, e.g., Licari v. Elliott, 57 N.Y.2d 230, 237, 455 N.Y.S.2d 570, 441 N.E.2d 1088; Kordana v. Pomellito, 121 A.D.2d 783, 503 N.Y.S.2d 198).
Defendant supported her motion with, inter alia, the affidavit of Dr. Joseph Fay, who examined plaintiff at defendant's behest on March 10, 1982 after having reviewed the hospital discharge summary and the postaccident X rays. In essence, Dr. Fay concluded that plaintiff had made a full and complete recovery from the November 1, 1981 accident, was not disabled and was able to return to work. He further noted there was no clinical or X-ray evidence to substantiate plaintiff's physical complaints of neck and back pain. Given this showing, it was incumbent on plaintiff to come forward with sufficient evidentiary proof in admissible form to raise a triable issue of fact as to whether a "serious injury" existed (see, Zoldas v. Louise Cab Corp., 108 A.D.2d 378, 382, 489 N.Y.S.2d 468; Dwyer v. Tracey, 105 A.D.2d 476, 480 N.Y.S.2d 781).
In his pleadings, plaintiff alleged several of the statutory categories of personal injury (Insurance Law § 5102), but in opposing the subject motion, he relied solely on the category of "significant limitation of use of a body function or system". Plaintiff's opposing papers consisted of his own...
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...a drastic remedy which should not be granted where there is any arguable doubt as to the existence of a triable issue (Passonno v. Hall, 125 A.D.2d 767, 509 N.Y.S.2d 189). When a party moves for summary judgment, the burden is on that party to present evidence in admissible form to warrant ......
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