ZEYGER v. LITMAN

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Supreme Court, Appellate Division, Second Department, New York.

Vladimir ZEYGER, etc., et al., Appellants, v. Mark LITMAN, Respondent.

Decided: May 26, 1998

Before ROSENBLATT, J.P., and SULLIVAN, JOY, ALTMAN and LUCIANO, JJ. Eric H. Green, New York City (Marc Gertler and Steven Hoffman, of counsel), for appellants. McCabe & Cozzens (Rivkin, Radler & Kremer, Uniondale [Evan H. Krinick and Catherine A. Reardon], of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Garry, J.), dated May 8, 1997, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the injured plaintiffs had not sustained serious injuries as defined by Insurance Law § 5102(d).

ORDERED that the order is modified, on the law, by deleting the provisions thereof which granted those branches of the defendant's motion which were to dismiss the causes of action asserted by the plaintiff Vladimir Zeyger and the derivative causes of action asserted by Margarita Zeyger as the wife of Vladimir Zeyger and substituting therefor provisions denying those branches of the defendant's motion;  as so modified, the order is affirmed, without costs or disbursements.

 The plaintiff Vladimir Zeyger met his burden of demonstrating the existence of factual issues with respect to whether he suffered a “serious injury” within the meaning of Insurance Law § 5102(d).   The affidavit of Vladimir Zeyger's treating chiropractor, based upon a recent examination, presents objective quantified evidence of the extent or degree of limitation with respect to the use of his cervical and lumbar spines and that these injuries are permanent (see, Steuer v. DiDonna, 233 A.D.2d 494, 650 N.Y.S.2d 298;  Washington v. Mercy Home For Children, 232 A.D.2d 549, 648 N.Y.S.2d 956).

 However, the affidavits submitted by Inna Zeyger's experts failed to show that she sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” (Insurance Law § 5102[d] ).  Objective evidence of the extent or degree of the physical limitation in her cervical spine was based on a chiropractor's examination performed approximately five years earlier, and the chiropractor failed to further quantify those limitations at a more recent examination (see, Sciuto v. Vicari, 210 A.D.2d 468, 620 N.Y.S.2d 1011;  Velez v. Cohan, 203 A.D.2d 156, 158, 610 N.Y.S.2d 257;  Beckett v. Conte, 176 A.D.2d 774, 575 N.Y.S.2d 102).   Furthermore, evidence that the Inna Zeyger had suffered from mild diffuse cerebral dysfunction and complained of headaches is a showing of no more than a “minor, mild or slight limitation of use * * * insignificant within the meaning of the statute” (Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 441 N.E.2d 1088;  Coughlan v. Donnelly, 172 A.D.2d 480, 481, 567 N.Y.S.2d 835).

In light of our determination to reinstate the causes of action asserted by the plaintiff Vladimir Zeyger we are also reinstating the derivative causes of action asserted by Margarita Zeyger as his wife.

MEMORANDUM BY THE COURT.

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