Tornatore v. Haggerty

• Decision Date: 10 July 2003
• Citation: 763 N.Y.S.2d 344,307 A.D.2d 522
• Parties: SALVATORE TORNATORE et al., Respondents,<BR>v.<BR>MARTIN F. HAGGERTY et al., Defendants, and<BR>EDITH E. JENSEN, Appellant.
• Court: New York Supreme Court — Appellate Division

307 A.D.2d 522

763 N.Y.S.2d 344

SALVATORE TORNATORE et al., Respondents,

v.MARTIN F. HAGGERTY et al., Defendants, andEDITH E. JENSEN, Appellant.

Kane, J.

Decided July 10, 2003.

Crew III, J.P., Spain, Carpinello and Mugglin, JJ., concur.

Kane, J.

While plaintiffSalvatore Tornatore(hereinafter plaintiff) was stopped at a red light, his van was rear-ended by a car driven by defendantMartin F. Haggerty, which in turn had been rear-ended by a car driven by defendantEdith E. Jensen(hereinafter defendant).Plaintiff and his wife, derivatively, commenced this action to recover for injuries he sustained as a result of this accident.^[*]Defendant moved for summary judgment dismissing the complaint against her, alleging that plaintiff had not sustained a serious injury under Insurance Law § 5102 (d).Defendant appeals from Supreme Court's denial of that motion.

Plaintiffs alleged serious injury under the statutory categories of permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined nonpermanent injury which prevented plaintiff from performing substantially all of his customary daily activities for 90 of the first 180 days following the accident (seeInsurance Law § 5102 [d]).Defendant's expert, who conducted an independent medical examination of plaintiff and reviewed his medical records, concluded that while plaintiff sustained a whiplash injury at the time of the accident and still experienced some residual effects, this was mild.Plaintiffs' response to the motion consisted of plaintiff's own affidavit, two pages of essentially illegible records from his treating family physician, physical therapy records, an MRI report and an affidavit and records from a neurosurgeon who treated plaintiff.As physical therapists cannot render a diagnosis, form a prognosis, or determine permanency or duration of physical limitations, plaintiff's physical therapy records are incompetent as evidence for this motion (seeEvans v Beebe,267 AD2d 828, 829[1999], lv denied94 NY2d 762[2000];Delaney v Lewis,256 AD2d 895, 897[1998]).

Defendant's expert diagnosed plaintiff with a whiplash injury which aggravated plaintiff's preexisting degenerative arthritis and cervical spinal stenosis.That doctor also took plaintiff's medical history, which revealed neck pain as well as numbness and tingling in his right index finger and thumb.Plaintiff's orthopedist opined that plaintiff's difficulty with his arm and hand were consistent with the impingement shown on plaintiff's MRI.Plaintiff testified at his deposition that he was a cabinet maker and that, because of his neck, arm and hand pain, he could not engage in his business or substantially all of his other activities during the four months following his accident.Defendant's expert never expressed an opinion concerning the disabling effect of plaintiff's injuries during that four-month period.Under these circumstances, defendant failed to sustain her burden on the 90/180 day category of serious injury (compareTemple v Doherty,301 AD2d 979[2003]).

Proof under the significant limitation of use category "requires a comparative determination of the degree or qualitative nature of the injury based on the normal function, purpose and use of the body part and must be supported by objective medical evidence"(Best v Bleau,300 AD2d 858, 860[2002], citingToure v Avis Rent A Car Sys.,98 NY2d 345, 350-351[2002]), usually through diagnostic test results.The MRI of plaintiff's cervical spine showed...