Savage v. Delacruz
| Decision Date | 29 March 1984 |
| Citation | 474 N.Y.S.2d 850,100 A.D.2d 707 |
| Parties | John D. SAVAGE, Appellant, v. Philip M. DELACRUZ et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ronald H. Sinzheimer, Albany, for appellant.
Carl A. Hayward, Latham (Mary D. Audi, Latham, of counsel), for respondents.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term, entered May 12, 1983 in Schenectady County, which granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff's action to recover for personal injuries followed a collision between an automobile operated by plaintiff and a vehicle owned by defendant Mary A. Delacruz and operated by defendant Philip M. Delacruz. The complaint alleged that plaintiff had sustained a "serious injury" as defined by section 671 of the Insurance Law (see CPLR 3016, subd. [g] ). After issue was joined, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff had not sustained such an injury within the meaning of section 671 (subd. 4) of the Insurance Law, and, accordingly, that recovery was barred by article 18 of the Insurance Law, commonly referred to as the "no-fault law". Special Term granted defendants' motion and this appeal by plaintiff ensued. We reverse.
While the question of whether a plaintiff has sustained a serious injury within the meaning of section 671 (subd. 4) of the Insurance Law ordinarily presents a question of fact for the jury, the Court of Appeals has indicated that the court must "decide the threshold question of whether the evidence would warrant a jury finding that the injury falls within the class of injuries that, under no-fault, should be excluded from judicial remedy" (Licari v. Elliott, 57 N.Y.2d 230, 238, 455 N.Y.S.2d 570, 441 N.E.2d 1088). Thus, in a contested motion for summary judgment dismissing the complaint in a personal injury action, the court must determine, as a matter of law, whether summary relief dismissing the complaint is appropriate (see Salisbury v. St. Louis, 91 A.D.2d 745, 457 N.Y.S.2d 985; Daviero v. Johnson, 88 A.D.2d 732, 451 N.Y.S.2d 858).
Turning to the case before us, we note that plaintiff relies on the categories of serious injury listed in section 671 (subd. 4) of the Insurance Law, specifically "permanent consequential limitation of use of a body organ or member" and "significant disfigurement". The limitation of use of a body member or organ must be "permanent" and "consequential" (Licari v. Elliott, supra). The limitation of use need not, however, be total (see Harris v. St Johnsbury Trucking Co., 57 A.D.2d 127). Here, the medical report of plaintiff's physician indicated that plaintiff had sustained a sprain of the right ankle, leaving him with a "mild partial disability" which "is likely to remain permanent". The medical report of the doctor who examined plaintiff on behalf of defendants indicated that plaintiff made "subjective complaints of pain" which he felt were not disabling. Plaintiff's verified bill of particulars, however, indicates that he now walks with a limp. Given these medical facts, we are of the view that defendants have not demonstrated that they are entitled to judgment as a matter of law on the question of whether plaintiff has sustained a "permanent consequential limitation of use of a body organ or member" within the meaning of section 671 (subd. 4) of the Insurance Law (see, generally, Cohen v. Lizza, 63 A.D.2d 557 [] ).
With respect to plaintiff's alleged "significant disfigurement", we note that both plaintiff's and defendants' medical reports state that plaintiff sustained scars in the area of his right knee, with plaintiff's doctor reporting the scars to be one-quarter inch and one and...
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