Opinion
February 11, 1999
Appeal from the Supreme Court (Ellison, J.).
In this negligence action, plaintiff seeks to recover for personal injuries she sustained in a motor vehicle collision which occurred on March 24, 1995. Following joinder of issue and discovery, defendants moved for partial summary judgment dismissing the complaint alleging that plaintiff had not as a matter of law sustained a causally related "serious injury", as that term is defined in three of the four categories described in Insurance Law § 5102 (d). In response to the motion, plaintiff submitted only an attorney's affidavit which relied upon the medical reports submitted by defendant in support of their motion. Supreme Court denied defendants' motion in its entirety and defendants appeal.
Defendants conceded that a question of fact existed as to whether plaintiff had met the conditions of the fourth category, i.e., whether an injury or impairment had been sustained that prevented her from performing substantially all of the material acts constituting her usual and customary daily activities during 90 of the 180 days immediately following the collision (Insurance Law § 5102 [d]).
Initially, we note that plaintiff concedes in her brief the absence of proof establishing a prima facie showing that she sustained a significant limitation of use of a body function or system as a result of this accident as described in the third category of serious injury described in Insurance Law § 5102 (d). Since our review of the medical evidence in the record comports with plaintiff's concession and establishes that defendants were entitled to summary judgment on this issue pursuant to CPLR 3212 (b), we agree with defendants that plaintiff's claim in that regard should be dismissed.
Next, upon review of the motion papers, we conclude that defendants satisfied their burden of coming forward with a prima facie showing that plaintiff did not as a result of the March 1995 collision sustain a serious injury within the remaining two categories alleged in plaintiff's bill of particulars, i.e., a personal injury that resulted in (1) a permanent loss of use of a body organ, member, function or system or (2) a permanent consequential limitation of use of a body organ or member (Insurance Law § 5102 [d]). Significantly, to establish "permanent loss" it is not necessary to prove a total loss of the affected function or system, but it is still necessary to submit "proof that it 'operates in some limited way, or operates only with pain'" (Dwyer v. Tracey, 105 A.D.2d 476, 477, quoting Mooney v. Ovitt, 100 A.D.2d 702, 703). "Some degree of permanency and causation must be demonstrated" (Dwyer v. Tracey, supra). To establish a "permanent consequential limitation", it was incumbent upon plaintiff to demonstrate more than "a mild, minor or slight limitation of use" (King v. Johnston, 211 A.D.2d 907).
Notably, plaintiff's hospital records on the day of the accident indicate a diagnosis of cervical strain with x rays and all other tests negative for injuries. Plaintiff thereafter complained of back, neck, chest and arm pain. Plaintiff's treating orthopedist ultimately opined that plaintiff had "a musculoskeletal strain pattern" with "no significant disability". He stated that plaintiff could work without restrictions and would improve under a home exercise program. The orthopedic surgeon retained by defendants, John Forrest, diagnosed plaintiff to have sustained a cervical spine sprain with left ulnar nerve symptoms and irritation. Although Forrest did document certain objective findings relating to plaintiff's condition (such as a minor limitation of motion in rotation, a positive Tinel's present over the ulnar nerve at the left elbow and decreased sensation in the ulnar nerve distribution on her left side), he was emphatic in stating that any resulting limitations were either mild, slight or insignificant. Notably, plaintiff related to Forrest that, although she experienced some pain, she could perform her basic housekeeping and cooking chores. Plaintiff having failed to raise a genuine factual issue as to whether she sustained a "serious injury" with respect to the permanency categories, Supreme Court erred in denying defendants' motion for partial summary judgment motion in its entirety.
Cardona, P. J., Mercure, Crew III and Yesawich Jr., JJ., concur.
Ordered that the order is reversed, on the law, without costs, and defendants' motion for partial summary judgment granted.