Nitti v. Clerrico

291 A.D.2d 807, 737 N.Y.S.2d 210, 2002 N.Y. App. Div. LEXIS 1085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2002
• Status: Published

Opinions

—Appeal from a judgment of Supreme Court, Oneida County (Shaheen, J.), entered January 18, 2001, which upon a jury verdict awarded plaintiff $45,000, plus costs and disbursements. .

It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed without costs.

Memorandum: Supreme Court properly denied defendants’ motion seeking to set aside the jury verdict on the ground that plaintiff did not prove that she sustained a serious injury within the meaning of Insurance Law § 5102 (d). The jury found that plaintiff sustained a serious injury under the 90/ 180-day category of Insurance Law § 5102 (d).

At trial, plaintiff presented the testimony of a chiropractor who examined her on two occasions on behalf of her no-fault carrier. During the first examination, conducted five months after the accident, the chiropractor conducted neurological and orthopedic screening tests. He detected, by sight and by touch, spasm in the right cervical spine that radiated into the shoulders. In addition, he performed the Soto-Hall’s test, which produced pain; the foramina-compression test, which produced localized pain in the cervical spine; the Valsalva test, which produced pain in the lumbar spine region; the Adams test, which produced pain at 80 degrees of flexion; the Yeoman’s test, from which he determined a restriction of movement; and the straight-leg raising test, which produced pain at 70 degrees of hip flexion. Based on those standard medical tests, of which there are both objective and subjective components, the chiropractor determined that plaintiff sustained a lumbosacral, sacroiliac, and cervical sprain/strain, indicating tissue damage to both muscle and ligament in the cervical and lumbar spine and resulting in a mild, partial disability. The chiropractor conducted a second examination 10 months after the accident and repeated the above tests. In addition, he reviewed the results of an MRI performed at the request of plaintiffs treating chiropractor. Following the second examination, the chiropractor diagnosed an L4-5 intervertebral disk disorder with associated neuritis. He determined that plaintiff was moderately, partially disabled, was unable to perform her normal daily functions, and was restricted in lifting.

Spasms are “objective evidence of the injury causing the disability” (Hines v Capital Dist. Transp. Auth., 280 AD2d 768, 771). Furthermore, the chiropractor’s observations of actual, quantified limitations are “more than [a] mere reiteration of plaintiffs subjective complaints of pain” and thus constitute objective evidence of a medically determined injury or impairment within the meaning of Insurance Law § 5102 (d) (O’Sullivan v Atrium Bus Co., 246 AD2d 418, 420; see, Parker v Defontaine-Stratton, 231 AD2d 412, 413). Thus, if credited by the jury, the objective evidence of spasm, seen and felt by the chiropractor on examination, as well as the results of medically recognized tests that require the patient to participate in the diagnosis by telling the chiropractor when pain is experienced, establish that plaintiff sustained a medically determined injury that impaired her activities for the requisite period of time within the meaning of the 90/180-day category of serious injury.

All concur except Scudder and Lawton, JJ., who dissent and vote to reverse in the following memorandum.