Plaintiff Fails to Satisfying the Permanent Loss of Use Category of Ins. Law § 5102(d)
In Tracy v. Tray, 2010 Slip Op. 00452 (3d Dept. Jan 21, 2010), plaintiff failed to satisfy the permanent loss of use category of Insurance Law § 5102(d). Under this provision, a plaintiff must establish that the loss of use is total. To meet this burden, “the medical evidence submitted by plaintiff must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system.”
In an attempt to satisfy her burden, plaintiff proffered the affidavit of her treating physician, Dr. Bennett. Bennett did not, however, opine that plaintiff’s loss of use was total, but instead concluded only that she “has a permanent moderate loss of use of her lumbar spine.” In his affidavit, Bennett opined that the force of the accident caused plaintiff’s preexisting degenerative disease of the lumbar spine to become symptomatic, requiring surgery and leaving plaintiff with a permanent moderate loss of function of the lumbar spine. Bennett did not explain how the accident aggravated plaintiff’s condition nor did he set forth any qualitative or quantitative evidence of a limitation in plaintiff’s range of motion.
Inasmuch as plaintiff failed to submit any objective evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury pursuant to Insurance Law § 5102(d), the court concluded that the complaint was properly dismissed.
