MACK v. PULLUM (2007)

Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle collision.   Defendant Maurice M. Pullum was operating the vehicle in which plaintiff was a passenger, and that vehicle was struck by a vehicle operated by defendant Tommie Lee Rice and owned by defendant Aldora Rice. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).  Supreme Court granted defendants' respective motions in part, dismissing the complaint with respect to the significant disfigurement, fracture and permanent loss of use categories of serious injury.   We conclude that the court properly denied those parts of the respective motions with respect to the permanent consequential limitation of use, significant limitation of use and 90/180 categories of serious injury.   Although defendants met their initial burden with respect to those categories, we conclude that plaintiff raised issues of fact with respect thereto (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In opposition to the motions, plaintiff submitted the affirmation and attached medical reports and records of a physician who concluded that the degenerative changes to plaintiff's spine before the accident were asymptomatic, and that physician established the extent or degree of the alleged physical limitations resulting from those conditions that plaintiff contends were aggravated as a direct result of the accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350-351, 746 N.Y.S.2d 865, 774 N.E.2d 1197;  cf. Owen v. Rapid Disposal Serv., 291 A.D.2d 782, 782-783, 737 N.Y.S.2d 453).   Contrary to defendants' contention, the opinion of that physician was not based solely on plaintiff's subjective complaints of pain (see Toure, 98 N.Y.2d at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197), and he set forth the tests he conducted and the results of those tests to support his conclusions concerning the restrictions and limitations resulting from plaintiff's injuries (see generally Calucci v. Baker, 299 A.D.2d 897, 898, 750 N.Y.S.2d 675;  Wiegand v. Schunck, 294 A.D.2d 839, 840-841, 741 N.Y.S.2d 360).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: