Stanavich v. Pakenas ( 1993 )

Crew III, J. (dissenting).

I respectfully dissent. It goes without saying that a motion for judgment pursuant to CPLR 4401 is appropriate "only where, giving the plaintiff the benefit of every favorable inference, there is no rational basis on which a jury could reasonably find for the plaintiff” (Walden v Otis El. Co., 178 AD2d 878, 879, lv denied 79 NY2d 758). Based upon my review of the record, I am of the view that Supreme Court erred in failing to grant defendants’ motion.

In order for plaintiff to prevail here, the record must establish that she sustained a permanent consequential limitation of use of a body organ or member. "A limitation of use of a body organ or member means that the body organ or member does not operate at all or operates only in some limited way” (PJI 2:88F [Supp]). In turn, "consequential” means that the limitation so defined is important or significant (see, Countermine v Galka, 189 AD2d 1043, 1045; Dwyer v Tracey, 105 AD2d 476, 478). Ergo, the record must establish, by competent medical evidence, that some body organ or member of plaintiff operates in a limited fashion, that such limited operation is significant and that it is permanent. Additionally, that limitation "must be tied to an objective, underlying injury; mere subjective complaints * * * in the abstract are insufficient” (Dubois v Simpson, 182 AD2d 993, 995 [emphasis supplied]; see, Scheer v Koubek, 70 NY2d 678, 679; Gaddy v Eyler, 167 AD2d 67, 71, affd 79 NY2d 955; Berben v Arain, 124 AD2d 379, 381).

Here, Benjamin Button, the orthopedic surgeon who treated plaintiff from December 2, 1981 to June 6, 1990, testified that plaintiff initially came to him complaining of pain and stiffness in her neck and shoulders and numbness in her hands. Although plaintiff echoed these complaints throughout her course of treatment with Button, the blood work performed in March 1982, the X rays taken in March 1982 and November 1984, and the CAT scan performed in June 1987 were all normal. Additionally, while Button did detect some tenderness and stiffness in plaintiff’s neck and shoulders at various times during her treatment and at one point noted a grating or snapping in plaintiff’s left shoulder, Button testified that his final examination of plaintiff revealed that she had "good range of motion” in her neck and previous examinations conducted on June 6, 1987 and September 2, 1987 indicated that plaintiff had full range of motion in her right and left shoulders. Button’s final diagnosis was chronic cervical strain, chronic upper thoracic strain and some radiculitis of the upper extremities. This latter condition is an inflammation of a particular nerve causing pain to radiate down the affected extremity.

Also testifying on plaintiffs behalf was James Meehan, a chiropractor who treated plaintiff on 33 occasions between June 11, 1987 and January 18, 1988. Meehan testified that upon his initial examination of plaintiff, he found that the muscles on both sides of plaintiff’s neck were in spasm and that plaintiff’s shoulder muscles were tight, with some tenderness and a decreased range of motion in plaintiffs left shoulder. Additionally, Meehan testified that he discovered some fixations, tightness and tenderness in plaintiff’s spine and that plaintiff had developed three trigger points, referring to a chronic tightening of the muscle and fascia in a specific area. Meehan also indicated that "[v]arious orthopedic tests were positive”. Meehan diagnosed plaintiff as having "multi cervical subluxation, fixations with chronic myofascitis, acute episodes of tendonitis of the left rotator cuff, or possible subdeltoid bursitis”.

Finally, testimony was received from Martin Farber, a rheumatologist who treated plaintiff from October 18, 1990 to January 15, 1992. Farber diagnosed plaintiff as having fibromyalgia or myofascial pain syndrome, which is characterized by increased muscle tone and stiffness resulting in pain, and he documented increased muscle tone in plaintiffs neck, shoulders and upper back and a decreased range of motion in plaintiffs neck.

Contrary to defendants’ assertion, the various findings of tenderness, tightness, muscle spasm, trigger points and decreased range of motion do qualify as objective proof of a physical injury (see generally, Lynch v Adirondack Tr. Lines, 169 AD2d 904, 906). Noticeably absent, however, is any medical testimony as to what activities plaintiff will be unable to perform as a result of the limitations described and opinion evidence as to their significance (see, Hemmes v Twedt, 180 AD2d 925, 926). Accordingly, there is a lack of medical evidence to support a finding that any of the limitations described are "important” or "significant” (Countermine v Galka, 189 AD2d 1043, 1045, supra). Although both Button and Meehan testified that plaintiffs injuries were permanent and a competent producing cause of her pain, neither quantified her limitations or degree of impairment. As for Farber, although his final examination of plaintiff apparently revealed that the range of motion in her neck was somewhere between 50% and 75% of normal, when asked whether plaintiffs injuries were permanent Farber responded, "in all likelihood she’s going to have some degree of symptoms permanently” (emphasis supplied), and stated that plaintiff would be "disabled from doing some things” due to pain. When asked on cross-examination whether it was his testimony that plaintiff "[could not] go out and work or do light housekeeping, or lead a relatively normal life”, Farber replied, "I’m not saying that, no.” I am constrained to conclude, therefore, that defendants’ motion for a directed verdict on the issue of whether plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d) should have been granted.

Weiss, P. J., Yesawich Jr. and Casey, JJ., concur with Mikoll, J.; Crew III, J., dissents in a separate opinion.

Ordered that the judgment is affirmed, with costs.