Harrity v Leone, 2012 NY Slip Op 01933 (4th Dept. 2012)
“Plaintiff, however, raised an issue of fact with respect to those two categories by submitting the affidavit of her treating physician, who outlined the objective medical evidence of plaintiff’s injury in those two categories, including a positive EMG test indicating acute bilateral radiculopathy at the L5 nerve root (see Frizzell v Giannetti, 34 AD3d 1202, 1203), positive straight leg tests (see id.; see also Lavali v Lavali, 89 AD3d 574, 575), positive Patrick tests (see Parczewski v Leone, 14 Misc 3d 1218 [A], 2003 NY Slip Op 50065[U], *2 [Sup Ct, Queens County]; see also Navedo v Jaime, 32 AD3d 788, 788), and notations of muscle spasms and trigger points (see Pagels v P.V.S. Chems., Inc., 266 AD2d 819, 819)”
I find it ever so amusing, if not a tad ingenuous, when the Appellate Divisions decide that certain “tests” are objective as a matter of law. It probably works well as a defense attorney in an IME doctor v. plaintiff hired gun case. It obviously is lethal to a defense attorney in a BI case. Still, you have to wonder.
