Stanavich v. Pakenas , 597 N.Y.S.2d 754 ( 1993 )

OPINION OF THE COURT

Mikoll, J.

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained as a result of an automobile accident which occurred on November 23, 1981. At the time of the accident, plaintiff’s vehicle was stopped at a traffic light in the City of Amsterdam, Montgomery County, when it was struck from behind by a vehicle owned by defendant Joseph Pakenas and operated by defendant Joseph Purtell. Following the accident, plaintiff was taken to the emergency room at a nearby hospital where she was treated and released. Thereafter, plaintiff continued to complain of and seek treatment for, inter alia, headaches, numbness and limited flexibility.

At the close of proof, Supreme Court denied defendants’ motion for a directed verdict on the issue of Purtell’s negligence and on the issue of whether plaintiff had sustained a serious injury within the meaning of Insurance Law § 5102 (d). The jury found that plaintiff had sustained a permanent consequential limitation of use of a body organ or member and awarded plaintiff $75,000 in damages. This appeal ensued.

Defendants urge that plaintiff failed to prove a permanent consequential limitation of use of a body organ or member as a serious injury under Insurance Law § 5102 (d), so that their motion for a directed verdict should have been granted. We disagree and conclude that the jury’s finding that plaintiff sustained a permanent consequential injury should be upheld. Viewing the evidence, as we must, in a light most favorable to the party prevailing at trial, the finding that plaintiff sustained a permanent consequential limitation of use of a body organ or member is not against the weight of the evidence (see, Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379). A jury’s verdict may be set aside as against the weight of the evidence only where the evidence preponderates so greatly in the movant’s favor that the jury could not have reached its conclusion on any fair interpretation of the evidence (Walden v Otis El. Co., 178 AD2d 878, 878-879, lv denied 79 NY2d 758).

The medical evidence presented by plaintiff involved both subjective and objective indicia. Benjamin Button, an orthopedic surgeon, found a cervical strain, chronic upper thoracic strain and radiculitis, causing pain to radiate down the arms. He testified that the accident caused plaintiff’s injuries, that they were permanent and a competent source of her pain and disability. James Meehan, a chiropractor, found pain upon motion of the cervical area, spasm on both sides of the neck, tightness in the shoulders and midback, decreased range of motion in the shoulder and arm numbness. He found that plaintiff’s injuries were permanent, that they were the cause of her pain and disabilities and were attributable to the accident. Martin Farber, a rheumatologist, also found limited motion in the neck, one half to two thirds of normal rotation, tightness in the muscles of the neck and upper back, acute episodes of tendonitis of the left rotator cuff or bursitis. He testified that plaintiff’s injuries were permanent and were a competent cause of her pain and disability. The testimony of all the treating physicians bear a uniformity as to the objective signs of injury, their permanency and their attribution to the accident.

Plaintiff testified as to the impact of the pain and injuries on her life. She said she has been in constant pain, that she is unable to do the things she used to enjoy — aerobics, water skiing, snow skiing and swimming — and that the accident adversely affected her ability to work. She also explained the interruptions in the treatment of her injuries as caused by the adverse effects of drugs upon her, her decision to try to live and work without pain killers, and her eventual return to treatment because of an inability to cope with her injuries without medical intervention. She testified, too, that she is no longer able to work full time because of pain and weakness and that she lost work because of a physical inability to work full time. She had to give up work as a housekeeper and as a food coordinator at an adult home because of pain and physical disability.

Taken as a whole, the record presents sufficient medical proof of consequential and permanent physical limitations, including a significant deterioration in the quality of plaintiffs life. Each physician indicated that her injuries are permanent, that they were caused by the accident and are the cause of her disabilities. The import of the medical testimony is that her injuries are significant or consequential.

Defendants contend that Supreme Court erred by including in its jury instructions a charge that competent proof of pain, even of an intermittent nature, may form the basis of a serious injury. Defendants maintain that competent proof of pain is only relevant to permanent loss of use of a body organ, member or system.

We have rejected subjective evidence of pain alone as inadequate to prove serious injury (see, Rivera v Pula, 173 AD2d 1000; see also, Gray v Steger, 150 AD2d 962, 964). Where, however, objective proof of pain and/or expert testimony is offered to substantiate permanent consequential limitation, such proof is admissable on the question of serious injury. The experts here testified that plaintiffs large reduction in flexibility or range of motion was caused by pain and that it is consequential. This satisfied the statutory requirement of serious injury.

Defendants’ contentions regarding the failure of plaintiffs medical witnesses to testify at length as to the extent of her disability and the minimal amount of testimony as to objective criteria go to weight and credibility and were correctly left to the jury (see, Holbrook v Jamesway Corp., 172 AD2d 910, 911). The objective medical evidence of plaintiffs pain and injuries supports a finding that she suffered a limitation which is significant or consequential.