In Lacomb v Poland Cent. School Dist. (116 Misc.2d 585 [Sup Ct, Herkimer County]), the court held that the affidavit of a clinical psychologist was sufficient to raise an issue of fact to defeat defendant's motion for summary judgment.Summary of this case from Hohlakis v. Rizzo Assocs
November 15, 1982
Louis S. Petrone, P.C., for Donna Tabor and another, defendants in Actions Nos. 3 and 4.
Kohn Moseman ( George Kohn of counsel), for Barbara U. Postiglion, plaintiff in Action No. 3.
Defendants moved pursuant to CPLR 3212 for summary judgment dismissing plaintiffs' complaint, in part, in Action No. 3, on the grounds that plaintiff Darlene T. Postiglion had not sustained a "serious injury" (Insurance Law, § 671, subd 4), and thus did not meet the threshold for suit under New York's no-fault insurance statute. Plaintiffs' answering affidavits were by plaintiffs' attorney, who attached a copy of a report by a clinical psychologist. In the report, a diagnosis for "Post-Traumatic Stress Disorder, Chronic (DSM III 309.81)" was made, and the psychologist set forth his opinion that "this constitutes a serious emotional impairment and significantly limits her ability to function independently and effectively in pursuit of important life goals" with "a strong likelihood that she will experience ongoing residual difficulty with this problem".
It is the opinion of this court that such a diagnosis by a clinical psychologist is sufficient to defeat a motion for summary judgment. This court cannot, at this stage of the proceedings, determine as a matter of law that plaintiff suffered no "serious injury" within the meaning of subdivision 4 of section 671 Ins. of the Insurance Law. Consequently, defendants' motion for summary judgment dismissing the complaint is denied.
Defendants argue that an attorney's affidavit, with an attached report of a nonmedical doctor, is insufficient to defeat their motion for summary judgment. While medical evidence is necessary to meet some alternative definitions of "serious injury" ( Ayala v Reyes, 66 A.D.2d 790; Daviero v Johnson, 110 Misc.2d 381; cf. Hezekiah v Williams, 81 A.D.2d 261), this court can find no such requirement where the injury alleged is psychological or psychiatric in nature and where a report of a State-certified clinical psychologist sufficiently alleges, in expert opinion form, "a serious emotional impairment" which "significantly limits her ability to function" and results in an "ongoing residual difficulty". Any attack on the weight to be given to such evidence should await the trial ( Sanders v Rickard, 51 A.D.2d 260).