Scollo v. Martin

Dillon, P. J., and Doerr, J. (dissenting).

We respectfully disagree. In our view documents submitted by defendant do not establish, as a matter of law, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The medical reports submitted by defendant indicate that plaintiff suffered from thoracic outlet syndrome and/or chronic cervical strain. The medical reports also note that plaintiff reported to the examining doctors repetitive episodes of pain in the neck and head, pain and weakness in the right arm, and numbness in the right hand. Although one physician opined that these symptoms were "put on”, the report containing this opinion does state that plaintiff does have "limitation of neck motion” and "limitation of shoulder motion”. Whether plaintiff’s condition is voluntary, as the doctor believes, or whether this condition is a result of a medical condition cannot be ascertained from the papers submitted by defendant. Accordingly, "further medical explanation” is necessary to resolve the disputed question of fact, and summary judgment was improperly granted (Mulhauser v Wood, 107 AD2d 1019; Hayes v Riccardi, 97 AD2d 954). (Appeal from *765order of Supreme Court, Onondaga County, Balio, J. — negligence.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and O’Donnell, JJ.