Hawkins v. Foshee

—Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). In support of her motion, defendant relied upon the report of a chiropractor who examined plaintiff five years after the accident. That report states that plaintiff suffered a cervical and thoracic strain and sprain causally related to the accident that aggravated symptoms of preexisting cervical and thoracic spondylosis. The chiropractor concludes that the accident left plaintiff with a “mild partial disability” and that no fundamental change in her condition can be expected. In our view, defendant’s own “proof, showing that plaintiff suffers from chronic neck, shoulder and back conditions that have restricted her physical activities, raises a triable question of fact as to whether she sustained a significant limitation of use of a body function or system (see, Larrabee v State of New York, 216 AD2d 772; Weaver v Howard, 206 AD2d 793)” (Thomas v Hulslander, 233 AD2d 567). Further, the proof that plaintiff continued to suffer from her accident-related injuries five years after the accident and that no change in her condition was expected raises the further question whether those injuries are permanent (see, Thomas v Hulslander, supra). (Appeal from Order of Supreme Court, Erie County, Michalek, J.—Summary Judgment.) Present—Green, J. P., Pine, Hayes, Callahan and Fallon, JJ.