| Lee v Laird |
| 2009 NY Slip Op 07725 [66 AD3d 1302] |
| October 29, 2009 |
| Appellate Division, Third Department |
| Charles T. Lee, Respondent, v Robert E. Laird Jr. et al.,Appellants. |
—[*1] The Harding Law Firm, L.L.C., Niskayuna (Charles R. Harding of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Lalor, J.), entered June 26, 2008 inGreene County, which, among other things, denied defendants' motion for summary judgmentdismissing the complaint.
Plaintiff, a truck inspector for the Department of Transportation, was injured when a truckowned by defendant Swift Transportation Company, Inc. and operated by defendant Robert E.Laird Jr. collided with the vehicle in which he was recording the results of an inspection he hadjust performed. Initially diagnosed with a lumbar strain and hip contusion during his visit to ahospital emergency room, plaintiff was later found to be suffering a lumbar spine injuryconsisting of herniated discs at L4-L5 and L5-S1. He then brought this action alleging seriousinjury within the meaning of Insurance Law § 5102 (d). In his bill of particulars, plaintiffasserted that he suffered a "permanent loss of use" and a "permanent consequential limitation ofuse" of his lumbar spine and lower back. Following joinder of issue, defendants moved forsummary judgment dismissing the complaint on the ground that plaintiff did not suffer a seriousinjury. Finding that plaintiff raised triable questions of fact as to whether he sustained a seriousinjury under the "permanent consequential limitation of use" and "significant limitation of use"[*2]categories of Insurance Law § 5102 (d), SupremeCourt denied the motion.[FN*]This appeal ensued.
Supreme Court properly determined, and plaintiff does not dispute, that defendants made aprima facie showing that plaintiff did not suffer a serious injury as a result of the accident(see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Nowak v Breen, 55 AD3d 1186, 1187-1188 [2008]; Tubbs v Pallone, 45 AD3d 959,960 [2007], lv denied 10 NY3d 702 [2008]). Thus, the issue distills to whether plaintiff'ssubmissions in opposition to the motion raise a triable issue of fact as to the existence of aserious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002];Nowak v Breen, 55 AD3d at 1188; Clements v Lasher, 15 AD3d 712, 712-713 [2005]).
As a preliminary matter, we first address Supreme Court's finding that plaintiff raised afactual issue as to whether he sustained a significant limitation of use of his lower back orlumbar spine. Since plaintiff did not allege in his bill of particulars that he suffered an injuryunder this category of serious injury and never moved to amend his bill of particulars to add suchcategory, the references thereto in his brief on appeal are not considered, and should not havebeen considered by Supreme Court in opposition to defendants' motion (see MacDonald v Meierhoffer, 13AD3d 689, 689 [2004]; Seymour v Roe, 301 AD2d 991, 995 n 4 [2003]; see also Sharma v Diaz, 48 AD3d442, 443 [2008]; Hall v Barth,36 AD3d 1050, 1051 n [2007]).
With respect to his claim that he suffered a permanent consequential limitation of use,plaintiff principally relied on the affidavit of his treating chiropractor, Debra Macko, who treatedhim on more than 140 occasions after the accident. Macko averred that an MRI taken twomonths after the accident revealed "a severe lumbar spine injury consisting of herniated discsand a torn disc placing pressure on and displacing the sciatic nerve root at both the L4-L5 andL5-S1 levels." Since proof of a herniated disc, by itself, is insufficient to establish a seriousinjury, Macko was further required to provide a designation of a numeric percentage of plaintiff'sloss of range of motion or a "qualitative assessment of [his] condition . . . ,provided that the evaluation has an objective basis and compares [his] limitations to the normalfunction, purpose and use of the affected body organ, member, function or system" (Toure vAvis Rent A Car Sys., 98 NY2d at 350 [emphasis omitted]; see Pianka v Pereira, 24 AD3d1084, 1085 [2005]; Gonzalez vGreen, 24 AD3d 939, 940-941 [2005]). In this regard, Macko opined that, based uponthe MRI results, plaintiff's medical records and her physical examinations of plaintiff, these discherniations were causally related to the accident and resulted in nerve root impingement andradiculopathy, causing pain, weakness and numbness in plaintiff's right leg. She further averredthat plaintiff's muscle atrophy in his right leg, which was objectively confirmed by two otherphysicians with whom plaintiff treated, is a direct consequence of the lumbar spine injury that hereceived from the accident. Moreover, she specified the degree of impairment suffered byplaintiff and opined that, with no change in plaintiff's condition after more than a 24 months oftreatment, plaintiff's condition, including his atrophy, was permanent in nature and not subject toimprovement. We find these averments to be sufficient to raise a question of fact concerningwhether plaintiff suffers from a permanent consequential limitation of use of a body organ ormember (see Chunn v Carman, 8AD3d 745, 746-747 [2004]; Brewer v Weston, 309 AD2d 1088, 1089 [2003];[*3]Hassam v Rock, 290 AD2d 625, 626 [2002]).
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as found an issue of fact as to whetherplaintiff sustained a serious injury under the significant limitation of use category of InsuranceLaw § 5102 (d), and, as so modified, affirmed.
Footnote *: In opposition to the motion,plaintiff did not dispute defendants' proof that he did not sustain a permanent loss of use of hislumbar spine and lower back and, on appeal, has withdrawn his claim under this category.