Webster v Rivera

[*1] Webster v Rivera 2005 NY Slip Op 52014(U) [10 Misc 3d 131(A)] Decided on December 9, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 9, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
DECEMBER 9, 2005
April 2005 Term
McCooe, J.P., Gangel-Jacob, Schoenfeld, JJ. , Justices.


Willie J. Webster, NY County Clerk's No. Plaintiff-Respondent,570689/04 Calendar No. 05-021

against

Orlando Rivera and D.. Trucking Services, Inc., Defendants-Appellants.

Defendants appeal from an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered July 8, 2004, which denied their motion for summary judgment dismissing the complaint.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered July 8, 2004, affirmed, with $10 costs.

Plaintiff was injured in September 2000 when the parked car in which he was sitting was rear-ended by defendants' truck. He was treated approximately 40 times over the next five months by a chiropractor who noted marked muscle spasms, difficulty in movement, and positive results in straight-leg raising and other tests. The chiropractor reexamined plaintiff in April 2004, finding carpal tunnel syndrome and a 20% limitation of movement and 20% decrease in flexibility in the cervical and lumbosacral spine, and concluding that the patient still exhibited a "mild partial disability" from what he described as a permanent and serious injury. Defendants' orthopedist examined plaintiff in March 2002 and found no residual spinal problems and no evidence of carpal tunnel syndrome, although he did note hypesthesia (diminished tactile sensitivity) on the right side of plaintiff's body. Defendants' neurologist examined plaintiff in the same time frame and found no evidence of permanent neurological disability.

Although the elusive standard of "serious injury" is not easily resolved (see Brown v Achy, 9 AD3d 30 [2004]), restrictions of movement quantified by plaintiff's treating doctor with reference to objective tests, as they relate to the history of the accident, are sufficient to defeat summary judgment on this question (Brooks v Zises, 16 AD3d 221 [2005]). Evidence that plaintiff's symptoms persisted, and that continued treatment was not helping, was sufficient to preserve the evaluation of any gap in treatment for the trier of facts (Akamnonu v Rodriguez, 12 [*2]AD3d 187 [2004]).

This constitutes the decision and order of the Court.
Decision Date: December 09, 2005