Denner v. Mizgala

Appellate Division of the Supreme Court of New York

Denner v. Mizgala

245 A.D.2d 1069, 666 N.Y.S.2d 76, 1997 N.Y. App. Div. LEXIS 13839

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 1997

StatusPublished

Cited by2 cases

This text of 245 A.D.2d 1069 (Denner v. Mizgala) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Denner v. Mizgala, 245 A.D.2d 1069, 666 N.Y.S.2d 76, 1997 N.Y. App. Div. LEXIS 13839 (N.Y. Ct. App. 1997).

Pincite

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law § 5102 (d). Although defendant met her initial burden, plaintiff submitted the affidavits of her treating physi[1070]*1070cians and thereby raised triable issues of fact whether she sustained a permanent consequential limitation of use of her back and neck or a significant limitation of use of her back and neck (see, Stanavich v Pakenas, 190 AD2d 184, 186-187, lv denied 82 NY2d 659; see also, Larrabee v State of New York, 216 AD2d 772, 773). One treating physician diagnosed plaintiff as suffering from chronic and severe cervical, dorsal and lumbosacral sprain with radiating pain, and intermittent paresthesias in her arms and legs; all directly and causally related to the motor vehicle accident at issue. Among the objective medical findings by the treating physicians are trigger points and spasms in plaintiff’s back (see, Larrabee v State of New York, supra, at 773). Two of the treating physicians opined that plaintiff’s injuries rendered plaintiff permanently disabled and unable to perform her profession as a chambermaid and housekeeper. Those findings of permanency are supported by medical evidence, and the results of the physicians’ examinations are sufficient to raise a triable issue of fact whether the limitation of use of plaintiff’s back is more than “ ‘minor, mild or slight’ ” (Gaddy v Eyler, 79 NY2d 955, 957, quoting Licari v Elliott, 57 NY2d 230, 236). Thus, summary judgment is inappropriate on this record (see, Thomas v Hulslander, 233 AD2d 567; see also, Lopez v Senatore, 65 NY2d 1017, 1020). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.— Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.

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—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law § 5102 (d). Although defendant met her initial burden, plaintiff submitted the affidavits of her treating physi[1070]*1070cians and thereby raised triable issues of fact whether she sustained a permanent consequential limitation of use of her back and neck or a significant limitation of use of her back and neck (see, Stanavich v Pakenas, 190 AD2d 184, 186-187, lv denied 82 NY2d 659; see also, Larrabee v State of New York, 216 AD2d 772, 773). One treating physician diagnosed plaintiff as suffering from chronic and severe cervical, dorsal and lumbosacral sprain with radiating pain, and intermittent paresthesias in her arms and legs; all directly and causally related to the motor vehicle accident at issue. Among the objective medical findings by the treating physicians are trigger points and spasms in plaintiff’s back (see, Larrabee v State of New York, supra, at 773). Two of the treating physicians opined that plaintiff’s injuries rendered plaintiff permanently disabled and unable to perform her profession as a chambermaid and housekeeper. Those findings of permanency are supported by medical evidence, and the results of the physicians’ examinations are sufficient to raise a triable issue of fact whether the limitation of use of plaintiff’s back is more than “ ‘minor, mild or slight’ ” (Gaddy v Eyler, 79 NY2d 955, 957, quoting Licari v Elliott, 57 NY2d 230, 236). Thus, summary judgment is inappropriate on this record (see, Thomas v Hulslander, 233 AD2d 567; see also, Lopez v Senatore, 65 NY2d 1017, 1020). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.— Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.

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Bluebook (online)

245 A.D.2d 1069, 666 N.Y.S.2d 76, 1997 N.Y. App. Div. LEXIS 13839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denner-v-mizgala-nyappdiv-1997.

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