Melino v. Lauster

Yesawich Jr., J.

(dissenting). Because we do not find plaintiff’s claim—arguably advanced in William Kite’s affidavit— that she suffered a significant limitation of use of her back to be "unsupported by any medical opinion”, we respectfully dissent. Kite’s affidavit, incorporating his office notes, clearly establishes that for a considerable period of time plaintiff’s "back movements” or "lower back motions” were "quite limited”, necessitating that she be directed to avoid bending and lifting entirely and to wear a back brace. As noted by the majority, these findings were not based solely on plaintiff’s subjective complaints of pain but on objective symptoms such as hypalgesia, decreased reflexes and inability to lift her legs (compare, Scheer v Koubek, 70 NY2d 678, 679; Cammarere v Villanova, 166 AD2d 760, 761). Although it has been held that *657some evidence of the extent of limitation is crucial to demonstrate a serious injury premised on the "significant limitation” category (see, Licari v Elliott, 57 NY2d 230, 239), there is no requirement that such evidence be in numerical form. Notably, the proof in Licari v Elliott (supra) established that the plaintiff suffered only a very mild limitation. Where, as here, there is competent medical testimony that the limitation is more than "minor, mild or slight” (see, supra, at 236), and that characterization is supported by objective clinical findings, summary judgment is not appropriate (see, Lopez v Senatore, 65 NY2d 1017, 1020). Nor must permanency be demonstrated if the evidence otherwise supports a finding of " 'significant limitation of use of a body function or system’ ” (see, Bassett v Romano, 126 AD2d 693, 694).

For these reasons, we believe that plaintiff’s showing is sufficient to raise a question of fact with regard to the existence of a serious injury, and we would accordingly affirm Supreme Court’s order.