Jones v. Sharpe

Kane, J. P., and Main, J.,

dissent and vote to reverse in the following memorandum by Kane, J. P. Kane, J. P. (dissenting). It is conceded that plaintiff, then 40 years of age, sustained an injury to his left knee in the *860accident of December 9,1979. As of November 30,1982, he continued to suffer pain and a “prickling” sensation around his left knee and thigh area, which, according to the affidavit of his attending physician submitted on the motion herein, has resulted in a mild to moderate consequential limitation or impairment of his left leg and knee which may be permanent in nature. Moreover, this affidavit further stated that the injury resulted in great difficulty for plaintiff and prevented him from engaging in a number of activities. The physician also reported on nerve conduction studies made of the injured area by a neurological specialist who had concluded that plaintiff’s complaints were suggestive of possible stretch injury or even neuroma of the related nerves. Plaintiff, a tractor trailer operator, described the limitations on his ability to withstand prolonged work activity, climb a ladder to repair his roof, or operate a chain saw to cut wood for his home which was heated by wood stoves. It is our view that the documentary sworn proof submitted on behalf of plaintiff on this motion is sufficient to establish, prima facie, a “serious injury” within the meaning of subdivision 4 of section 671 of the Insurance Law, and the instant motion should not have been granted (Licari v Elliott, 57 NY2d 230, 237; Simone v Streeben, 56 AD2d 237; Sanders v Rickard, 51 AD2d 260). The order should be reversed, the motion for summary judgment denied, and a trial should be directed to determine the issue of fact raised by plaintiff’s prima facie proof of serious injury.