In Herrera v. Dulisse, a car accident case, the Appellate Division, First Department reversed the lower court’s grant of summary judgment to defendant on plaintiff’s claim that she suffered a “serious injury”.
Defendant “failed to establish his entitlement to judgment as a matter of law with respect to plaintiff’s claims under the ‘permanent consequential limitation of use of a body organ or member’ and ‘significant limitation of use of a body function or system’ categories of serious injury under Insurance Law § 5102(d).”
The court held:
[P]laintiff’s medical records show[ed] a bulging disc and a 20% loss of use of [plaintiff’s] cervical spine shortly after the vehicular accident, and continuing range of motion deficits three years later. Such medical evidence, which contradicts defendant’s medical evidence, raises issues of fact as to the existence and causation of plaintiff’s injuries.
Furthermore, even assuming that defendant met his initial burden, plaintiff’s submissions are sufficient to defeat the motion. The affirmed report of plaintiff’s examining neurologist “showing recent quantified range of motion limitations, positive tests, and permanency provided the requisite proof of limitations and duration of the … injuries. Nor, on this record, is it fatal to plaintiff’s claims of permanency that the discharge report prepared by his treating orthopedist some two months post-accident indicated that plaintiff then felt “much better” and experienced “no pain,” particularly since that same report included a diagnosis of “cervical radiculitis due to disc displacement” and a 20% “impairment” of plaintiff’s cervical spine. Injuries can become significantly more or less severe as time passes. Moreover, the evidence that plaintiff ceased treatment when her no-fault benefits terminated constitutes at least the bare minimum required to raise an issue regarding some reasonable explanation’ for the cessation of physical therapy.
The court, however, held that the lower court properly dismissed plaintiff’s claim under the “90/180” serious injury category.