Passonno v. Hall ( 1986 )

— Harvey, J.

Appeal from an order of the Supreme Court at Special Term (Cobb, J.), entered December 5, 1985 in Albany County, which denied defendant’s motion for summary judgment dismissing the complaint.

In 1981, plaintiff was injured while a passenger in an automobile owned by defendant which was involved in a one-car accident. He was hospitalized and objective evidence revealed a loss of the normal lorditic curvature of the spine. After discharge, he continued to receive medical treatment from his personal physician as well as an orthopedic surgeon.

This personal injury action was commenced in October 1983. Defendant moved for summary judgment to dismiss the complaint on the ground that plaintiff failed to establish the "serious injury” threshold of Insurance Law § 5102 (d). To support her motion, defendant submitted an affidavit from a doctor who had been retained by her insurance company and who had seen plaintiff on only one occasion. His stated opinion was that plaintiff had suffered no permanent injury.

In opposition to the motion, plaintiff submitted, inter alia, an affidavit from the orthopedic surgeon who had been treating him for over ZV2 years. The doctor stated that, upon review of plaintiffs medical records and based on his own diagnosis, plaintiff had sustained a head injury, laceration of the posteroparietal area, cerebral concussion, a locked facet syndrome and chronic cervical strain. The doctor had engaged in a continuous course of treatment of plaintiff which included prescribed medication, moist heat treatments and conditioning exercises for both the cervical and lumbosacral spine regions. On his last examination of plaintiff before his July 29, 1985 affidavit, the orthopedist found objective evidence of a continuation of the spinal disability. He stated that he was still attempting to rehabilitate plaintiffs lumbosacral and cervical spine but could not determine whether this effort would be successful in alleviating plaintiff’s disability. Consequently, he was unable to state at that time whether the injury was permanent.

Special Term denied defendant’s motion to dismiss the complaint and this appeal ensued.

Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue (Millerton Agway Coop. v Briarcliff Farms, 17 NY2d 57, 61; Denton Pub. v Lillendahl, 112 AD2d 658) or where the issue is arguable (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Waldron v Wild, 96 AD2d 190, 192). All competent evidence must be viewed in the light most favorable to the party opposing the motion (Merlis v Lupo, 108 AD2d 902; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.12). It is axiomatic that " 'issue-finding, rather than issue-determination, is the key to the procedure’ ” (Sillman v Twentieth Century-Fox Film Corp., supra, p 404, quoting Esteve v Avad, 271 App Div 725, 727; accord, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3212:2, p 425).

In order for us to grant the relief sought by defendant, we must be convinced that plaintiff has failed to raise a question of fact as to whether he sustained any significant or permanent injuries. We are unable to make such a conclusion in view of the fact that plaintiff presently is being treated and has been treated for over 3 Yz years but continues to show objective signs of his injuries. The fact that his doctor is not yet able to state conclusively that the injuries will be permanent does not necessitate a judicial determination at this time that a prima facie showing of serious injury has not been made (see, Savage v Delacruz, 100 AD2d 707). It would be improvident to punish plaintiff for the conscientiousness of his doctor who continues with treatments in the hope that recovery will be made. Further, we are unable to conclude as a matter of law that the injuries suffered were not significant. To do so we would have to give undue credence to the single examination made by defendant’s doctor. On a motion for summary judgment, such a factual determination would not be proper. In our opinion, Special Term was justified in denying the motion. Defendant is not prejudiced by this decision. The issue of legal sufficiency of the proof will be decided by the court either at trial or by motion pursuant to one of the conditions established by Special Term’s decision.

Order affirmed, without costs. Main, J. P., Casey and Harvey, JJ., concur.