Ahmed Dame Toure,
Avis Rent A Car Systems, Inc. et al.,
Linda W. Manzano et al.,
Sharon A. O'Neil,
Brenda M. Nitti,
Josephine Clerrico et al.,
Appellants, et al.,
2002 NY Int. 85
These three cases examine the nature and extent of
qualitative, objective medical proof necessary for a plaintiff to
meet the "serious injury" threshold under the No-Fault Law. We
conclude that plaintiffs Toure and Manzano have satisfied their
burden under Insurance Law § 5102(d),
but plaintiff Nitti has
This Court has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v Green, , 84 NY2d 795, 798 ; see also Licari v Elliott, , 57 NY2d 230, 234-235 ). As such, we have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 NY2d at 798; Lopez v Senatore, , 65 NY2d 1017, 1020 ); subjective complaints alone are not sufficient (see e.g. Gaddy v Eyler, , 79 NY2d 955, 957-958 ; Scheer v Koubek, , 70 NY2d 678, 679 ).
In order to prove the extent or degree of physical
limitation, an expert's designation of a numeric percentage of a
plaintiff's loss of range of motion can be used to substantiate a
claim of serious injury (see e.g. Dufel, 84 NY2d at 798; Lopez,
65 NY2d at 1020). An expert's qualitative assessment of a
plaintiff's condition also may suffice, provided that the
Toure v Avis Rent A Car Systems, Inc.
Plaintiff commenced this action to recover damages for
neck and back injuries allegedly suffered when the vehicle he was
driving was struck by an automobile operated by defendant Susan
Duncan and owned by defendant Avis Rent A Car Systems, Inc.
Following joinder of issue, plaintiff served a bill of
particulars alleging that he suffered a "permanent consequential
limitation of use of a body organ or member" and a "significant
limitation of use of a body function or system," two of the
statutory categories defining "serious injury" under Insurance
Law § 5102(d).
Defendants then moved for summary judgment
In support of their motion, defendants submitted various medical records of plaintiff and an affirmation from a neurologist, Dr. Ralph Olson. Dr. Olson conducted a physical examination of plaintiff and reviewed plaintiff's medical records, including reports from plaintiff's chiropractor and reports of x-rays and an MRI of plaintiff's back. He concluded that a "clinical examination of the central and peripheral nervous system, cervical, dorsal and lumbosacral spine fails to reveal any objective abnormalities to indicate any residual disability" and that "[f]rom a neurologic standpoint [plaintiff] has recovered from his various injuries."
In opposition, plaintiff submitted his own affidavit
and an affirmation from Dr. Joseph Waltz, a neurosurgeon who had
treated him for approximately a year and a half prior to
defendants' motion. Plaintiff averred that, even three years
after the accident, he could lift only "moderate weight objects
with significant pain," experienced pain attempting to bend and
Based on his review of medical records from plaintiff's
prior health care providers, Dr. Waltz noted that an earlier MRI
test of plaintiff's cervical spine -- taken one month after the
accident -- revealed one bulging and two herniated discs. As a
consequence, he had plaintiff undergo additional testing -- a CT
scan of his cervical spine and an MRI of his lumbar spine.
According to Dr. Waltz, the CT scan indicated "significantly
bulging possibly herniated discs" and the lumbar MRI revealed
"significant bulging discs." While conducting a physical
examination, Dr. Waltz observed that plaintiff "had paraspinous
muscle spasms in the lumbosacral area and a decreased range of
motion in his lumbar spine." He opined to a reasonable degree of
medical certainty that plaintiff's disc pathology was caused by
the motor vehicle accident and that plaintiff's injuries are
"permanent and result in restriction of use and activity of the
injured areas and permanent limitation of his spine and
peripheral nervous system." Moreover, Dr. Waltz related this
assessment to plaintiff's complaints of difficulty in sitting,
standing and walking for extended periods of time and plaintiff's
Based on these submissions, Supreme Court granted defendants' motion and dismissed plaintiff's complaint. The Appellate Division affirmed, with two Justices dissenting. Plaintiff appealed to this Court as of right.
Although Dr. Olson's affirmation was sufficient to meet defendants' initial burden to establish a prima facie case that plaintiff's alleged injuries did not meet the serious injury threshold under the No-Fault Law (see e.g. Gaddy, 79 NY2d at 956- 957), plaintiff's proffered evidence raises issues of material fact as to whether he 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."
For these two statutory categories, we have held that
"[w]hether a limitation of use or function is 'significant' or
'consequential' (i.e., important * * *) relates to medical
significance and involves a comparative determination of the
degree or qualitative nature of an injury based on the normal
function, purpose and use of the body part" (Dufel, 84 NY2d at
While Dr. Waltz's affirmation does not ascribe a specific
We cannot say that the alleged limitations of
plaintiff's back and neck are so "minor, mild or slight" as to be
considered insignificant within the meaning of Insurance Law §
5102(d) (Licari, 57 NY2d at 236; see also Gaddy, 79 NY2d at 957;
Scheer, 70 NY2d at 679). As our case law further requires, Dr.
Waltz's opinion is supported by objective medical evidence,
including MRI and CT scan tests and reports, paired with his
observations of muscle spasms during his physical examination of
plaintiff. Considered in the light most favorable to plaintiff,
this evidence was sufficient to defeat defendants' motion for
summary judgment (see Lopez, 65 NY2d at 1020). Given this
ruling, we need not pass on plaintiff's remaining claim under
Manzano v O'Neil
After her vehicle was rear-ended by an automobile operated by defendant, plaintiff and her husband initiated this lawsuit alleging that she sustained a serious injury pursuant to Insurance Law § 5102(d), specifically, "a permanent consequential limitation of use of a body organ or member." Prior to trial, the parties stipulated to defendant's liability but agreed to litigate the issue of whether plaintiff sustained a serious injury under the No-Fault Law.
Plaintiff testified that after the accident, she was taken to a hospital because of pain in her lower back and "tingling" in her neck and spine. She was released that same day. When her pain persisted, she sought treatment from various health care providers and attended physical therapy. Despite these measures, plaintiff described her condition by stating: "I can no longer do heavy lifting of any kind. I cannot shovel the driveway like I used to. I don't clean the house like I used to. I can't carry the vacuum cleaner. I can't pick up my children." Plaintiff's husband provided similar testimony regarding her limitations.
Dr. John Cambareri, an orthopedic surgeon who treated
plaintiff on four occasions testified on her behalf. On
plaintiff's first visit, he conducted an orthopedic examination
of her neck and lower back. As a result of this examination, he
found that plaintiff had tenderness in her neck and lower back as
At the conclusion of plaintiff's proof, defendant moved for a directed verdict primarily on the ground that plaintiff failed to meet her burden of proving a prima facie case of serious injury. Supreme Court reserved judgment on the motion. Defendant then rested without calling any witnesses. Subsequently, the jury awarded plaintiff $70,000 in damages.
Defendant renewed her previous motion and moved to set
aside the verdict. Supreme Court denied both motions. Defendant
then sought to correct or vacate the judgment, arguing that the
amount of prejudgment interest due was improperly computed. That
motion also was denied. The Appellate Division reversed the
judgment and dismissed the complaint, holding that it was error
In this case, plaintiff presented the testimony of her treating physician, Dr. Cambareri, who opined that plaintiff suffered two herniated cervical discs as a result of the automobile accident. His conclusion was supported by objective evidence introduced at trial, namely, the MRI films that he interpreted. Although this medical expert did not assign a quantitative percentage to the loss of range of motion in plaintiff's neck or back, he described the qualitative nature of plaintiff's limitations based on the normal function, purpose and use of her body parts. In particular, Dr. Cambareri correlated plaintiff's herniated discs with her inability to perform certain normal, daily tasks. These limitations are not so insignificant as to bar plaintiff's recovery under the No-Fault Law (see Licari, 57 NY2d at 236). Viewing the evidence in the light most favorable to plaintiff, it cannot be said that there is no valid line of reasoning and permissible inferences that could possibly lead rational persons to the conclusion reached by the jury (see Parkin v Cornell Univ., Inc., , 78 NY2d 523, 526 ).
Defendant further contends that plaintiff failed to
establish a permanent consequential limitation of use because the
testimony of her expert was based on an examination that was
Nitti v Clerrico
Plaintiff brought this personal injury action after she sustained injuries as a passenger in a vehicle struck by defendants' car. In her bill of particulars, plaintiff alleged that she suffered a serious injury as defined by Insurance Law § 5102(d) under the following categories, among others: "significant limitation of use of a body function or system" and "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
At trial, plaintiff described the back pain she
experienced due to the accident and how, as a result, she was
unable to return to work on a consistent basis for approximately
six months. She testified that during this time, she was unable
Plaintiff further presented the testimony of Dr. Daniel Patriarco, a chiropractor who twice examined her in connection with an independent evaluation. On plaintiff's first visit, he performed an examination of plaintiff's cervical and lumbar spine. At some point during this exam, Dr. Patriarco detected a spasm "in the right cervical spine which radiated into the shoulders." Additionally, he conducted several tests from which he concluded that plaintiff had restricted range of motion in her back and neck. However, on cross-examination, he conceded that these tests were subjective in nature as they were dependent, at least in part, on plaintiff's complaints of pain. Ultimately, he diagnosed plaintiff with a "lumbosacral, sacroiliac and cervical sprain/strain with some secondary pain in the back of the head" and that she had a "mild partial disability," which was caused by the motor vehicle accident. As a result, Dr. Patriarco restricted plaintiff from lifting more than 20 pounds and recommended further chiropractic care.
Dr. Patriarco testified that he next examined plaintiff
six months later. Once again, he conducted a physical
examination of plaintiff. He also reviewed a report of an MRI of
plaintiff's spine, which report was not introduced into evidence.
Based on his examination of plaintiff and the MRI report, he
At the close of plaintiff's case, defendants moved for a directed verdict on the grounds that plaintiff failed to establish a prima facie case of negligence and serious injury. As to their serious injury argument, defendants contended that Dr. Patriarco's opinions were not supported by objective medical proof. Supreme Court denied the motion on both grounds. Defendants then presented their case, which consisted of three witnesses but no medical testimony.
The jury found that defendants were negligent and that plaintiff sustained a serious injury under the 90/180 category, but not under the significant limitation category, and awarded plaintiff $45,000. In their motion to set aside the verdict, defendants asserted that Dr. Patriarco's testimony was legally insufficient to support a finding of serious injury because it lacked an objective medical basis. Supreme Court denied the motion, and the Appellate Division, in a three-two decision, affirmed the judgment entered in plaintiff's favor after the denial of the motion to set aside the verdict. This appeal as of right ensued.
This case concerns a different category of serious
Plaintiff contends that the testimony of her chiropractor, Dr. Patriarco, regarding his detection of a back spasm and his review of an MRI report, together with the testimony regarding the limited range of motion in her neck and spine, are sufficient to support the jury's finding that she suffered a serious injury. Based on the proof adduced at trial, we disagree.
Although medical testimony concerning observations of a
spasm can constitute objective evidence in support of a serious
injury, the spasm must be objectively ascertained. This
Accordingly, in Toure v Avis Rent A Car Systems, Inc.,
the order of the Appellate Division should be reversed, with
costs, and defendants' motion for summary judgment denied. In
Manzano v O'Neil, the order of the Appellate Division should be
reversed, with costs, and the case remitted to the Appellate
1 Insurance Law § 5102(d) defines the term "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
2 Based on Oberly v Bangs Ambulance, Inc. (96 2 295 ), plaintiff withdrew his additional claim of a "permanent loss of use of a body organ, member, function or system."
3 Although plaintiff now objects to the form of some of the exhibits submitted in support of defendants' motion for summary judgment, he did not challenge their inclusion before the motion court and therefore failed to preserve this argument for our review (see Hambsch v New York City Tr. Auth., , 63 NY2d 723, 725 ).
4 For this reason, the Appellate Divisions have held that a diagnosis of a bulging or herniated disc, by itself, does not constitute a serious injury (see e.g. Manzano v O'Neil, 285 AD2d 966 [4th Dept 2001], revd on other grnds __ NY2d __ ; Rose v Furgerson, 281 AD2d 857, 859 [3d Dept], lv denied , 97 NY2d 602 ; Pierre v Nanton, 279 AD2d 621 [2d Dept 2001]; Noble v Ackerman, 252 AD2d 392, 394 [1st Dept 1998]).
5 Defendants do not contest the substantiality of plaintiff's limitations. Thus, the latter requirement of the 90/180 category -- that the injury prevents a person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment -- is not at issue.