Gillick v. Knightes

Mugglin, J. Appeal from an order of the Supreme Court (Lynch, J.), entered September 7, 1999 in Schenectady County, which granted defendant’s motion for summary judgment dismissing the complaint. In October 1996, a vehicle operated by plaintiff Kathleen Gil-lick (hereinafter plaintiff) was the first of three stopped at a red light. When the light turned green, defendant accelerated and collided with the second vehicle, which struck plaintiff’s vehicle in the rear. Plaintiff and her husband, derivatively, commenced this action. After joinder of issue and discovery defendant moved for summary judgment, claiming that plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102 (d). Supreme Court determined that plaintiffs failed to rebut defendant’s prima facie showing that plaintiff did not suffer a “serious injury” and granted defendant’s motion for summary judgment dismissing the complaint. Plaintiffs appeal and we affirm. With the exception of a finding of some spasm made by plaintiff’s treating orthopedic surgeon two days postaccident (and arguably six days later when he reported no change in physical findings), this record is completely devoid of competent medical evidence, based on objective findings and diagnostic tests, to demonstrate that plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) (see, Fountain v Sullivan, 261 AD2d 795; Tankersley v Szesnat, 235 AD2d 1010; Van De Bogart v Vanderpool, 215 AD2d 915). The record reveals that she was diagnosed with cervical sprain and strain and that she has a resultant loss of cervical range of motion. However, her X-rays, MRI, EMG and nerve conduction study all revealed no evidence of injury and were within normal ranges. We have repeatedly held that a diagnosis of loss of range of motion, because it is dependent on the patient’s subjective expressions of pain, is insufficient to support an objective finding of a serious injury (see, Wiley v Bednar, 261 AD2d 679; Broderick v Spaeth, 241 AD2d 898, 900, lv denied 91 NY2d 805). Moreover, plaintiffs reliance on her orthopedic surgeon’s affidavit submitted in opposition to defendant’s motion for summary judgment is misplaced. In the affidavit, the doctor stated that plaintiff “is unable to flex her neck forward or rotate toward the left.” This sworn statement was made based on his physical and X-ray examination of plaintiff done on May 22, 1998. Then, however, the doctor stated only that based on his [753] physical examination, plaintiff “has discomfort with any attempt at forward flexion and rotation toward the left.” On X-ray examination he did state that plaintiffs “flexion/extension views are limited,” not showing “any significant flexion whatsoever, except at the Cl-2/2-3 levels.” This examination was dependent upon the cooperation of plaintiff and is impacted by the subjective complaints of pain and willingness of plaintiff to flex or extend her cervical spine. Moreover, the doctor reported no objective evidence shown by the X-ray which would account for this lack of flexion. Mercure, J. P., Crew III and Rose, JJ., concur.