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

Jacqueline SANTOS et al., Respondents, v. Melanie MARCELLINO et al., Appellants.

Decided: August 08, 2002

Before:  CARDONA, P.J., MERCURE, PETERS, CARPINELLO and LAHTINEN, JJ. Flink, Smith & Associates L.L.C., Latham (Aaron R. Anderson of counsel), for appellants. Thorn, Gershon, Towne, Tymann & Bonanni L.L.P., Albany (Mandy M. Carrigan of counsel), for respondents.

Appeal from an order of the Supreme Court (Best, J.), entered August 21, 2001 in Montgomery County, which denied defendants' motion for summary judgment dismissing the complaint.

Plaintiffs commenced this action seeking damages for personal injuries allegedly sustained by plaintiff Jacqueline Santos (hereinafter plaintiff) in a 1997 motor vehicle accident.   Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102(d).  Supreme Court denied defendants' motion, finding that the medical affidavits submitted by plaintiffs were sufficient to raise a question of fact regarding the extent of plaintiff's injuries.   Defendants appeal.

Defendants contend that Supreme Court erred in denying their motion for summary judgment because plaintiffs failed to submit adequate proof of a qualifying serious injury.   As the parties seeking summary judgment, defendants had the initial burden of “presenting evidence in admissible form warranting a finding, as a matter of law, that plaintiff did not sustain an Insurance Law § 5102(d) serious injury” (Blanchard v. Wilcox, 283 A.D.2d 821, 822, 725 N.Y.S.2d 433).   Defendants met that burden by submitting the affirmation of an independent examining physician who concluded that there were no objective findings and no functional impairment of plaintiff's neck and back.   The burden then shifted to plaintiffs to “rais[e] a triable issue of fact through competent medical evidence based upon objective medical findings and diagnostic tests” (Hines v. Capital Dist. Transp. Auth., 280 A.D.2d 768, 769, 719 N.Y.S.2d 777).   Supreme Court found that plaintiffs' evidence, consisting of affidavits from plaintiff's primary physician, her physician's assistant and an orthopedist, sufficiently established that she had suffered a significant limitation of the musculoskeletal system in her neck and back as a result of the accident.

Initially, we note that plaintiffs alleged in their bill of particulars that plaintiff had suffered a qualifying injury under four threshold categories delineated by Insurance Law § 5102(d).  However, on this appeal plaintiffs have briefed only their claim of significant limitation of use of a body function or system, thereby abandoning the other categories (see, Gibeault v. Home Ins. Co., 221 A.D.2d 826, 827 n. 2, 633 N.Y.S.2d 678).   Upon review, we are persuaded that Supreme Court correctly found plaintiffs' submissions to be sufficient to raise a question of fact on that claim.

 Christine Holz, the treating physician's assistant, averred that, as a result of the accident, plaintiff had suffered a “cervical and lumbosacral strain and sprain secondary to a whiplash injury” causing debilitating pain.   Holz stated that, two days after the accident, plaintiff presented with “significant trapezial muscle spasms, decreased flexion and extension, and tenderness in the cervical spine region”.   Holz also stated that throughout an extended period of treatment, plaintiff continued to have “palpable spasms in the cervical region;  persistent paresthesia in the upper extremities;  sciatica in the lower extremities;  painful trigger points in the trapezial muscles;  difficulty breathing during periods of particularly intense cervical pain;  [and] muscle weakness in the lower back”.   Those findings were endorsed by George Weiss, plaintiff's primary physician.   As this Court has previously held, palpable trigger points and spasms may constitute objective medical evidence of a serious injury (see, Barbagallo v. Quackenbush, 271 A.D.2d 724, 725, 706 N.Y.S.2d 201;  McGuirk v. Vedder, 271 A.D.2d 731, 732, 706 N.Y.S.2d 485;  see also, Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 357, 746 N.Y.S.2d 865, 774 N.E.2d 1197).   In addition, the affidavit of Thomas Egan, an orthopedic surgeon who examined plaintiff in June 2001, documented specific restrictions on the range of motion of plaintiff's cervical spine, and he opined that plaintiff had suffered a significant limitation of the use of the musculoskeletal system in her neck and back (see, McGuirk v. Vedder, supra, at 732, 706 N.Y.S.2d 485;  Weaver v. Howard, 206 A.D.2d 793, 793-794, 615 N.Y.S.2d 122).   Egan identified the specific range of motion and straight leg tests used to formulate his opinion (compare, Blanchard v. Wilcox, 283 A.D.2d 821, 823, 725 N.Y.S.2d 433, supra ).   An expert's designation of numeric percentages of a plaintiff's loss of range of motion, such as those presented by Egan and which are in direct conflict with the opinion of defendants' examining physician, can be used to substantiate a claim of serious injury (see, Toure v. Avis Rent A Car Sys., supra, at 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197).

 Under the circumstances, we agree with Supreme Court that plaintiffs have submitted sufficient evidence to raise a question of fact concerning whether plaintiff suffered a serious injury within the meaning of Insurance Law § 5102(d), and find that summary judgment was properly denied (see, Hassam v. Rock, 290 A.D.2d 625, 626, 736 N.Y.S.2d 140;  Evans v. Hahn, 255 A.D.2d 751, 751-752, 680 N.Y.S.2d 734).

ORDERED that the order is affirmed, with costs.



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