Ciocca v. Park

Lahtinen, J. (dissenting).

We respectfully dissent. We are not persuaded that plaintiffs’ proof was so devoid of merit as to justify summary dismissal. The medical proof established that plaintiff Raffaele Ciocca (hereinafter plaintiff) had a large tear in his right rotator cuff and a ruptured bicep that significantly limited the use of his right arm. The crux of the dispute was whether plaintiff suffered this condition as a result of trauma (i.e., the October 2002 accident) or whether it was a degenerative condition. Plaintiff testified that, prior to the accident, he had no problems with the arm and was able to actively participate in his construction business. At trial, he testified that following the accident, he could not lift his right arm and was no longer able to perform certain work that he was able to perform prior to the accident. Plaintiff sought medical treatment the day following the accident and, when his primary care physician was unable to adequately address his symptoms after five months, he sent plaintiff to John Sutton, a surgeon with extensive experience in treating rotator cuff injuries.

Sutton performed a comprehensive exam of plaintiffs right shoulder, made a clinical finding that plaintiff had a torn rota-tor cuff and ordered an MRI to confirm that finding and to further define the nature of the injury to properly chart a course of treatment. While Sutton testified at trial that the precise date *674of injury could not be determined merely from viewing an MRI or X ray, such diagnostic tools together with the history related by plaintiff led Sutton to opine that plaintiff “incurred ... an acute large tear of the rotator cuff and biceps tendon secondary to the accident [i]n October.” Use of a patient’s history in conjunction with objective medical proof can suffice to send a serious injury issue to a jury (see Orsenigo v Burnstein, 202 AD2d 561 [1994]; see also Balanta v Stanlaine Taxi Corp., 307 AD2d 1017, 1018 [2003]; Countermine v Galka, 189 AD2d 1043, 1045-1046 [1993]). Additionally, Mark Bucksbaum (plaintiffs’ retained expert) opined upon cross-examination that the onset of plaintiffs torn rotator cuff was consistent with the date of the car accident and did not predate the accident. The opinion of defendants’ expert that plaintiffs condition was degenerative places the credibility of the experts squarely in question and that question should have been submitted to the jury (see Countermine v Galka, supra at 1046). Likewise, the jury should have had the opportunity to assess and determine the probative value of plaintiffs testimony which was the subject of a vigorous cross-examination.

To be sure, the evidence was presented in a disjointed fashion, somewhat complicated because treatment occurred in Canada, some medical records were in French and plaintiffs’ questionable trial strategy of not calling the investigating police officer, the emergency medical personnel that treated plaintiff at the scene, his brother who saw him five hours after the accident or the doctor that treated him the day after the accident. Nevertheless, the jury should have been allowed to sort out and weigh the preferred evidence especially where, as here, all of the direct proof on both sides was complete and the charge conference had been held (see Jacino v Sugerman, 10 AD3d 593, 594-595 [2004]; Austin v Consilvio, 295 AD2d 244, 246 [2002]; Rosario v City of New York, 157 AD2d 467, 472 [1990]). We would reverse and remit for a new trial.

Kane, J., concurs. Ordered that the judgment is affirmed, without costs.