Opinion
2004-1621 K C.
Decided November 4, 2005.
Appeal by defendant from an order of the Civil Court, Kings County (D. Waltrous, J.), entered August 16, 2004, which denied his motion for summary judgment.
Order affirmed without costs.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
Defendant moved for summary judgment on the ground that plaintiff failed to satisfy the threshold requirement of suffering a serious injury under Insurance Law § 5102 (d).
Defendant's doctors failed to set forth the objective tests supporting the claim that there was no limitation of plaintiff's cervical spine ( see Facci v. Kaminsky, 18 AD3d 806; Nembhard v. Delatorre, 16 AD3d 390; Mosheyev v. Pilevsky, 3 AD3d 523).
While the concurring opinion notes that "a variety of objective tests" were performed by defendant's doctors, to the extent that any of said tests were "objective," they failed to adequately address plaintiff's cervical spine and, in any event, they failed to designate a numeric percentage of plaintiff's limitation of motion and did not compare plaintiff's motion to normal function ( Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350). One of the defendant's doctors merely stated that plaintiff's cervical spine had full range of motion without any further explanation as to how he reached that conclusion. We feel that objective tests are still necessary for the defendant's doctor to conclude that plaintiff is "normal." While our colleague refers to Toure v. Avis Rent A Car Sys. ( 98 NY2d 345, 351, 352, supra), in that case the defendant's doctor listed the medical and chiropractic records of plaintiff's doctors that he reviewed before he reached the conclusion that plaintiff had recovered from his injuries. In the case at bar, defendant's doctor did not indicate that he reviewed any medical records before reaching his conclusion.
Inasmuch as defendant's motion failed to shift the burden to plaintiff, the sufficiency of plaintiff's opposition papers need not be considered ( Aronov v. Leybovich, 3 AD3d 511).
Rios and Belen, JJ., concur.
Golia, J.P., concurs in a separate memorandum.
I disagree with the finding of the majority that "[d]efendant's doctors failed to set forth the objective tests supporting the claim that there was no limitation of plaintiff's cervical spine . . ."
The report of Dr. Toriello M.D. clearly lists a variety of objective tests including straight leg raising, examination of plaintiff's ambulation, observation as to muscle atrophy, etc. In addition, Dr. Rosenblum M.D. performed palpation of the spinous area, reflex testing and straight leg tests and found no evidence of spasm. Dr. Rosenblum further performed an EEG test, as well as "sharp object" and "vibratory" sensation tests and found no evidence of radicular sensory abnormality.
I therefore find that defendant has met his burden and has shifted the burden to the plaintiff who, I find, has similarly raised an issue of fact. The ultimate issue of whether or not the plaintiff suffered a "serious injury," as defined by the Insurance Law, requires a plenary trial.
Clearly a careful reading of Toure v. Avis Rent A Car Sys. ( 98 NY2d 345) would support my view. Indeed, the Court of Appeals in Toure, which consists of three separate cases, speaks directly to the majority's statement that "to the extent that any of said tests were 'objective' . . . they failed to designate a numeric percentage of plaintiff's limitation of motion and did not compare plaintiff's motion to normal function." The Toure court states:
"In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury . . . [or] An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function . . ." (emphasis in original) ( Toure v. Avis Rent a Car Sys., 98 NY2d at 350).
As conceded by the majority, there were objective tests performed and the "qualitative assessment" was that the plaintiff's functions were now normal. To those of us who understand the English language, we know a medical determination that a particular bodily function is "normal" is the equivalent of finding that the particular bodily function is 100% normal. This is to be contrasted to the situation where there is a medical determination that a particular function is less than normal. Under the latter circumstance one must ascribe a numerical percentage so that the reader can learn whether there is a 1% loss of function, a 100% loss of function or anything in between. The first being insignificant and the second being substantial, but both being truthfully categorized as a "loss of function."
Here the majority finds that the affirmation was insufficient because the "Defendant's doctors failed to set forth the objective tests supporting the claim that there was no limitation of plaintiff's cervical spine . . ."
That statement is factually incorrect in two regards. Firstly, the defendant's doctor did not state that there was "no limitation" but that "[t]he claimant reveals evidence of a resolved cervical hyper extension injury . . ." He therefore implicitly found that there had been a cervical injury, but that such injury was now resolved.
Secondly, the doctor's report establishes a variety of objective tests concerning the cervical spine. He conducted a physical examination, palpation tests as well as observing the absence of atrophy. All these tests are related to the cervical spine.
However, most important is the fact that the Court of Appeals addressed the very issue that faces us here. They found the following affirmation in support of a defendant's motion to dismiss was "sufficient to meet defendant's initial burden to establish a prima facie case that plaintiff's alleged injuries did not meet the serious injury threshold" ( id. at 352):
". . . a 'clinical examination of the central and peripheral nervous system, cervical, dorsal and lumbosacral spine fails to reveal any objective abnormalities to indicate any residual disability' and that '[f]rom a neurological standpoint 'plaintiff] has recovered from his various injuries'" ( id. at 351).
Accordingly, I concur with the ultimate disposition reached by the majority, but disagree with their findings as indicated herein.