Plaintiff, Cheryl Sunness, commenced this action against defendant, Patricia Hinshaw, seeking to recover for personal injuries suffered in an automobile accident. Defendant moves for summary judgment dismissing the complaint based upon plaintiff's alleged failure to establish a serious injury pursuant to Insurance Law § 5102. Plaintiff opposes the motion and cross-moves for partial summary judgment on the issue of negligence.

On August 9, 2005, at approximately 9:56 a.m., plaintiff, age 53, had just finished driving through a McDonald's drive-thru located at 167 Main Street, Binghamton, New York. Plaintiff's vehicle was poised at the exit of the drive-thru lane preparing to turn right onto Main Street when she was rear-ended by defendant's vehicle twice in short succession. The force of the second impact by defendant's vehicle propelled plaintiff's vehicle into Main Street where her vehicle struck a third vehicle driven by Abayomi Durham. According to the Police Accident Report, defendant advised the investigating officer that she had blacked out prior to the accident. The record also references the possibility that defendant had suffered a seizure which caused her to lose control of her vehicle.^[FN1]

Consequently, the court finds that plaintiff is entitled to summary judgment solely on the issue of negligence. The court will next turn its analysis to defendant's motion addressing the issue of serious injury.

II.Serious Injury

On a defense motion seeking summary judgment relative to the serious injury threshold, it is well-settled that the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [*2][2003]). Assuming a defendant meets this initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [2003]).

Here, plaintiff alleges she suffered a distal radius and dorsal carpal avulsion fracture to the right wrist and chronic mallet finger. Plaintiff's Verified Bill of Particulars alleges these injuries qualify as a serious injury under Insurance Law § 5102 under the following categories: (1) a fracture; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; and (4) the so-called 90/180-day category (Plaintiff's Verified Bill of Particulars, ¶ 5). Defendant's motion argues that plaintiff has failed to establish a serious injury under any of these categories.

A.Fracture

Simply stated, the parties dispute whether or not plaintiff's medical records establish that she suffered a fracture to her wrist. Immediately following this accident plaintiff was transported to Lourdes emergency room where she underwent X-rays for her injured wrist. The Lourdes Emergency Department Report states, in part, that the X-ray of plaintiff's right wrist "[d]id reveal faint abnormality with some lucency transversely across the distal radius and an irregularity noted along the dorsum of the radius, unclear. According to Radiology, no obvious fracture was noted though clinically she had pain and problem moving and was very tender and was swollen." The Lourdes Diagnostic Imaging report states: "[t]here is some irregularity seen at the dorsal aspect of the distal radius and the possibility of a non-displaced fracture cannot be ruled out [emphasis added]."

The following day, on August 10, 2005, plaintiff followed-up with a private physician,

Lawrence Weisner, M.D. Dr. Weisner's report states "X-rays, AP, lateral, and oblique projections of the right wrist reveal a ulnar positive wrist. Possible nondisplaced fracture in the distal radius and a questionable dorsal carpal avulsion fracture." On a follow-up visit on September 29, 2005, Dr. Weisner noted "[e]xamination reveals near full range of motion of her right wrist compared to the opposite side. She has tenderness dorsally over her wrist and posterior carpal bones. She has no significant swelling and is neurovascularly intact."

Approximately two years after the accident, on May 24, 2007, the defense conducted an independent medical examination performed by Sury Putcha, M.D. Dr. Putcha's IME report concludes:

I don't think she suffered any fractures. Fracture of distal radius was suspected initially. Since there appears to be a synovial tissue prominence in the right wrist area, she needs to consult with her personal physician and possibly have some tests done to rule out any underlying cause for the synovial tissue prominence or synovitis.

Dr. Putcha further avers that plaintiff suffers from:

[d]iminished right hand function, and she also seems to have associated synovitis in the flexor tendons of the wrist. This has not been investigated fully. She needs to have certain tests [*3]to rule out an underlying rheumatoid type of arthritis. As far as automobile related accident is concerned, this appears to have been a sprained wrist. She has some limited wrist movements. She seems to have a moderate degree of dysfunction of her right hand. If this condition remains into the future, then it can be called permanent...Further treatment is in the nature of investigation of the cause for synovitis, because usually one would not see synovial tissue prominence following a sprain injury.

(Defendant's Exhibit I).

Defendant also submits an affidavit from Ralph L. Stevens, M.D., a board certified radiologist. In May of 2006, Dr. Stevens reviewed plaintiff's original X-rays taken at Lourdes the day of the accident and found "no fractures, dislocations or other acute osseous pathology."

Despite the reports of Dr. Putcha and Dr. Stevens, the court finds that defendant has failed to establish as a matter of law that plaintiff did not suffer a fracture of the right wrist. As itemized above, the medical records from plaintiff's emergency room visit identify a possible fracture. In and of itself, the court finds that plaintiff's original medical records identifying a possible fracture prevent the defense from arguing conclusively to the contrary.

Parenthetically, even if the court had deemed defendant's proof sufficient to meet her burden in establishing the lack of a fracture, the court finds that plaintiff has raised a triable issue of fact by presenting medical evidence contemporaneous with the subject accident that she sustained a possible fracture from the subject accident [citation omitted]" (Kaplun v Septama, 38 AD3d 847 [2007]). Additionally, plaintiff's own physician, Dr. Weisner, identified a possible fracture. Consequently, defendant's motion for summary judgment dismissing the fracture category is denied.

B.Permanent consequential limitation of use of a body organ or member and

Significant limitation of use of a body function or system.

The court will address both these categories simultaneously as they involve analogous considerations. The Court of Appeals has explained that the "limitation of use" may be established in one of two ways, namely medical proof of a quantitative percentage (e.g., a numeric percentage of a loss of range of motion) or, in the alternative, medical proof of a functional impairment, excluding loss of range of motion, by way of a medical expert's qualitative assessment of the current condition as compared to the normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). Moreover, it is well-settled that the terms "consequential" or "significant" relative to "limitation of use" must be more than minor, mild or slight as established by expert medical proof (Licari v Elliott, 57 NY2d 230, 236 [1982]). Finally, both the durational and causation elements of this category must be demonstrated by competent medical proof as well (Albanese v Stevens, 148 AD2d 805, 806 [1989]). [*4]

The court finds that defendant has failed to meet her burden in either category. Defendant's own expert concedes that plaintiff suffered from a rupture of the extensor tendon of the right middle finger, diminished right hand function, limited wrist movement, and a moderate degree of dysfunction that could be permanent (Def Ex I). In any event, even if the burden had shifted to plaintiff, her own physician, Dr. Wiesner, clearly states plaintiff had approximately 15 degrees of extension and 30 degrees of flexion. Moreover, Dr. Wiesner avers that plaintiff's chronic mallet finger creates a significant degree of dysfunction in her right hand that is permanent in nature and a result of this accident.

Consequently, the court finds that defendant's motion for summary judgment on the serious injury categories of permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system should be denied.

C.90/180-day category

The 90/180-day serious injury category requires proof of a "[m]edically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Insurance Law § 5102 [d]). To satisfy this category, plaintiff must establish her usual activities were curtailed "to a great extent rather than some slight curtailment," as well objective medical findings of a medically determined injury or impairment of a nonpermanent nature which caused the alleged limitations on her daily activities (Licari, 57 NY2d at 235; Monk v Dupuis, 287 AD2d 187, 191 [2001]).

Defendant argues that plaintiff's own deposition testimony establishes that although her wrist injury slowed her down and forced her to learn how to do certain activities differently, plaintiff admitted she was able to do everything herself, it just took her much longer and/or she had to learn to use her left hand more. With respect to work, plaintiff testified that she missed four days of work after the accident and that when she returned to work her right wrist and hand were immobilized for six weeks so that she was limited in how she could perform certain functions (such as talking on the phone, computer work, writing). Nevertheless, plaintiff explained that she was able to perform tasks necessary for her to work, but at a slower pace and with pain. With respect to her personal life and hygiene, plaintiff stated she experienced pain in her wrist 30% of the time and for several months had difficulty performing personal hygiene tasks such as brushing her teeth, hair, makeup, showering, and dressing herself. Finally, plaintiff testified that she had started her own catering business which was impacted by her inability to lift and carry heavy items and manipulate kitchen utensils.

The court finds defendant's submissions do not meet her initial burden of establishing that plaintiff did not suffer a medically determined injury under this category. In this court's view, Dr. Putcha's IME report does not adequately discuss this particular category of serious injury and, further, the IME took place well beyond the expiration of the 180-day period (Lowell v Peters, 3 AD3d 778 [2004]; Ames v Paquin, 40 AD3d 1379, 1380 [2007]). Thus, the burden has not shifted to plaintiff to lay bare her evidence with respect to this claim. [*5]

Parenthetically, the court notes that even if it had deemed defendant's proof sufficient to meet her burden, it would have found plaintiff had satisfied her burden of coming forward with proof in evidentiary form sufficient to raise a triable issue of fact warranting denial of summary judgment.

In view of the foregoing, the court finds that plaintiff's cross-motion for partial summary judgment on the issue of negligence is GRANTED; and defendant's motion for summary judgment dismissing plaintiff's complaint is DENIED.

The foregoing constitutes an order of the court upon which judgment may be entered according to its terms.

It is so ordered.

Dated: October 9, 2007

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court