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Insurance Law § 5102 (d), and (2)…cont

However, plaintiff’s submissions in response to the respective motions, when viewed in their entirety, constitute objective evidence sufficient to raise a triable issue of fact as to serious injury. Plaintiff, in addition to the MRI report, relies on the results of an EMG/NCV (electromyogram and nerve conduction velocity) study, initially submitted in support of defendants’ motions, with abnormal findings at C5-6 and L5-S1. The results of the NCV test, conducted within six months of the accident, were included in a report prepared by plaintiffs neurologist dated June 11, 1998, together with his observations that plaintiff suffered from decreased range of motion in her head, neck and lower back. In addition, plaintiff’s doctor submitted an affirmation, prepared after a recent examination, that plaintiff has a 25% loss of lateral flexation and rotation in the cervical spine bilaterally; that plaintiff has a 25% loss of forward flexion in the lumbar spine; and that plaintiffs seated straight-leg raising test is positive bilaterally at 60 degrees. Plaintiff’s doctor also concluded that plaintiff has a “permanent partial disability.”

Evidence of range of motion limitations is sufficient to defeat summary judgment. Furthermore, this Court has held that straight-leg raising tests are objective evidence of serious injury, especially where, as here, they are coupled with positive MRI and nerve conduction velocity test results. That the MRI report and nerve conduction velocity study results are unsworn “does not avail” defendants.

Since plaintiff has submitted competent objective evidence to confirm the findings of both the MRI and EMG/NCV studies, she has raised a triable issue of fact whether she sustained a serious injury as defined by the Insurance Law. These objective medical findings coupled with plaintiff’s chiropractor’s affidavit, which contains a finding of permanency and causally relates her injuries to the underlying motorcycle accident.

The dissent suggests that, one of the cases decided with Toure, the Court of Appeals would reject straight-leg raising tests as objective tests of serious injury, because these tests which chiropractors employ to determine a plaintiff’s range of motion limitations are in part based on a plaintiff’s subjective complaints of pain. The dissent further states, “the existing record does not establish whether the particular tests used by plaintiff’s medical experts were based on subjective complaints of pain, and defendants should not be precluded from exploring this issue at trial.”

We emphasize that our conclusion in this case is based not only on straight-leg raising tests, but on positive MRI and EMG/NCV test results as well. Therefore, in this case, we need not determine whether our dissenting colleague’s interpretation of Nitti v Clerrico is correct, nor reach the issues of whether straight-leg raising tests alone would be sufficient under Toure, and whether our own past decisions are consistent with Toure’s reasoning.

As for the dissent’s admonition that the defense be permitted at trial to explore the subjective components of any tests used by experts to form their opinions on the subject of serious injury, that is fair and reasonable and we agree. The more than two-year gap in treatment between plaintiff’s visits to the chiropractor – the first visit within 10 days of the accident and regular visits for at least five months thereafter – and the recent examination conducted by her physician, the results of which were submitted in opposition to defendants’ respective motions, go to the weight, not the admissibility, of the evidence. Where, as here, plaintiff’s chiropractor averred that she “received an adequate course of conservative management and had reached her maximal medical improvement when she stopped treating with me,” plaintiff has, with minimal adequacy, explained her treatment gap in this case. To find differently at this juncture would, according to precedent, invade the jury’s province.

We respectfully disagree with our dissenting colleague’s position that plaintiff’s chiropractor’s opinion that plaintiff was treated until she reached her “maximal medical improvement” is insufficient as a matter of law to explain the plaintiffs gap in treatment, because, purportedly, it materially differs from the medical explanation the Court of Appeals found sufficient in Toure, i.e., that plaintiff could derive no “benefit in her continuing to seek medical treatment for this condition”. We see each of these two statements, respectively given to explain the plaintiffs treatment gaps in each case, as similar for all practical purposes, if not exquisitely identical in meaning. To hold otherwise would, in our view, revere form over substance. The dissent’s other attempts to distinguish the two medical statements, in our view, simply raise additional factual issues to be explored at trial.

Accordingly, we find that plaintiff has raised a triable issue of fact as to whether she sustained a serious injury under the Insurance Law, and, consequently, we need not address plaintiffs more specific claim that she sustained an injury which prevented her from performing substantially all of her daily activities for at least 90 out of the 180 days following the accident. Finally, we dismiss plaintiff’s purported appeal from the decision, as no appeal lies therefrom.

Accordingly, the order of the Supreme Court, Bronx County, entered May 6, 2002, which granted the separate motions of defendant Leonor Reynoso and defendants for summary judgment dismissing the complaint for failure to establish a serious injury as defined by Insurance Law § 5102 (d), should be reversed, on the law, without costs, the respective motions denied and the complaint reinstated. The purported appeal from a decision, same court and Justice, entered on or about March 18, 2002, should be dismissed, without costs, as taken from a non-appealable paper.

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