Opinion
100730/2007.
Decided August 12, 2009.
Vincent J. Licata, Esq., New York, NY, Attorney for Plaintiff.
Baker McEvoy Morrissey Moskovits, P.C., New York, NY, Attorney for Defendant.
On July 18, 2006, plaintiffs Emily Barbieri and Steven Barbieri (collectively "plaintiffs"), mother and son, were involved in a motor vehicle accident while riding as passengers in a vehicle owned by defendant Harnswinder Singh and operated by defendant Harmandeep Singh (collectively "defendants"). The accident occurred when the vehicle came in contact with a stationary object near the intersection of South Street and Peck Slip in New York County, New York. Plaintiffs commenced this action to recover damages for alleged personal injuries suffered as a result of the subject motor vehicle accident. The parties completed discovery and a Note of Issue was filed on June 20, 2008. Defendants now move for an order pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the threshold issue of "serious injury," pursuant to Insurance Law § 5102 (d).
SERIOUS INJURY THRESHOLD
Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101 et seq. — the "No-Fault Law"), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102 (d) ( see Licari v Elliott, 57 NY2d 230). Insurance Law § 5102 (d) defines "serious injury" as:
a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member ["permanent consequential limitation"]; significant limitation of use of a body function or system ["significant limitation"]; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment ["90/180-day"].
Plaintiffs claim a "serious injury" under the following relevant categories: (1) permanent consequential limitation; (2) significant limitation; and (3) 90/180-day ( see defendants' motion, exhibit B, bill of particulars at ¶ 20; plaintiffs' affirmation in opposition). Emily Barbieri alleges injuries to her cervical spine and lumbar spine; and Steven Barbieri alleges injuries to his cervical spine, lumbar spine and right knee ( see bill of particulars at ¶ 11). The Court must determine whether, as a matter of law, plaintiffs have sustained a "serious injury" under at least one of the claimed categories.
"Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case ( Licari, 57 NY2d at 235; Insurance Law § 5104 [a]). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to "weed out frivolous claims and limit recovery to significant injuries'" ( Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350, quoting Dufel v Green, 84 NY2d 795, 798). As such, to satisfy the statutory threshold, plaintiffs are required to submit competent objective medical proof of their injuries ( id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury ( id.).
SUMMARY JUDGMENT ON SERIOUS INJURY
The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment ( see Licari, 57 NY2d at 237). The moving defendant bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that the plaintiff has not suffered a "serious injury" as defined in section 5102 (d) ( see Toure, 98 NY2d at 352; Gaddy v Eyler, 79 NY2d 955, 956-57). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question ( see Franchini v Palmieri , 1 NY3d 536 , 537; Rubensccastro v Alfaro , 29 AD3d 436, 437 [1st Dept 2006]).
A defendant can satisfy the initial burden by relying on the sworn or affirmed statements of their own examining physician, plaintiff's sworn testimony, or plaintiff's unsworn physician's records ( see Arjona v Calcano , 7 AD3d 279 , 280 [1st Dept 2004]; Nelson v Distant, 308 AD2d 338, 339 [1st Dept 2003]; McGovern v Walls, 201 AD2d 628, 628 [2d Dept 1994]). Reports by a defendant's own retained physician, however, must be in the form of sworn affidavits or affirmations because a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment ( see Pagano v Kingsbury, 182 AD2d 268, 270 [2d Dept 1992]). Moreover, CPLR 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury.
A defendant can meet the initial burden of establishing a prima facie case of the nonexistence of a serious injury by submitting the affidavits or affirmations of medical experts who examined the plaintiff and opined that plaintiff was not suffering from any disability or consequential injury resulting from the accident ( see Gaddy, 79 NY2d at 956-57; Brown v Achy , 9 AD3d 30 , 31 [1st Dept 2004]; see also Junco v Ranzi, 288 AD2d 440, 440 [2d Dept 2001] [defendant's medical expert must set forth the objective tests performed during the examination]). A defendant can also demonstrate that plaintiff's own medical evidence does not indicate that plaintiff suffered a serious injury and that the injuries were not, in any event, causally related to the accident ( see Franchini, 1 NY3d at 537). A defendant can additionally point to plaintiff's own sworn testimony to establish that, by plaintiff's own account, the injuries were not serious ( see Arjona, 7 AD3d at 280; Nelson, 308 AD2d at 339).
The plaintiff's medical evidence in opposition to summary judgment must be presented by way of sworn affirmations or affidavits ( see Pagano, 182 AD2d at 270; Bonsu v Metropolitan Suburban Bus Auth., 202 AD2d 538, 539 [2d Dept 1994]). However, a reference to unsworn or unaffirmed medical reports in a defendant's motion is sufficient to permit the plaintiff to rely upon the same reports ( see Ayzen v Melendez, 299 AD2d 381, 381 [2d Dept 2002]). Submissions from a chiropractor must be by affidavit because a chiropractor is not a medical doctor who can affirm pursuant to CPLR 2106 ( see Shinn v Catanzaro , 1 AD3d 195 , 197 [1st Dept 2003]). Moreover, an expert's medical report may not rely upon inadmissible medical evidence, unless the expert establishes serious injury independent of said report ( see Friedman v U-Haul Truck Rental, 216 AD2d 266, 267 [2d Dept 1995]; Rice v Moses, 300 AD2d 213, 213 [1st Dept 2002]).
In order to rebut the defendant's prima facie case, the plaintiff must submit objective medical evidence establishing that the claimed injuries were caused by the accident, and "provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration" ( Noble v Ackerman, 252 AD2d 392, 394 [1st Dept 1998]; see also Toure, 98 NY2d at 350). Plaintiff's subjective complaints "must be sustained by verified objective medical findings" ( Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]). Such medical proof should be contemporaneous with the accident, showing what quantitative restrictions, if any, plaintiff was afflicted with ( see Nemchyonok v Ying , 2 AD3d 421 , 421 [2d Dept 2003]). The medical proof must also be based on a recent examination of plaintiff, unless an explanation otherwise is provided ( see Bent v Jackson , 15 AD3d 46 , 48 [1st Dept 2005]; Nunez v Zhagui , 60 AD3d 559 , 560 [1st Dept 2009]).
A medical affirmation or affidavit that is based on a physician's personal examination and observation of a plaintiff is an acceptable method to provide a physician's opinion regarding the existence and extent of a serious injury ( see O'Sullivan v Atrium Bus Co., 246 AD2d 418, 419 [1st Dept 1998]). "However, an affidavit or affirmation simply setting forth the observations of the affiant are not sufficient unless supported by objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on a neurological examination" ( Grossman, 268 AD2d at 84; see also Arjona, 7 AD3d at 280; Lesser v Smart Cab Corp., 283 AD2d 273, 274 [1st Dept 2001]). A physician's conclusory assertions based solely on subjective complaints cannot establish a serious injury ( see Lopez v Senatore, 65 NY2d 1017, 1019).
A plaintiff's medical proof of the extent or degree of a physical limitation may take the form of either an expert's "designation of a numeric percentage of a plaintiff's loss of range of motion"; or qualitative assessment of a plaintiff's condition, "provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" ( Toure, 98 NY2d at 350). The medical submissions must specify when and by whom the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether plaintiff's limitations were significant ( see Milazzo v Gesner , 33 AD3d 317, 317 [1st Dept 2006]; Vasquez v Reluzco , 28 AD3d 365, 366 [1st Dept 2006]).
Further, a plaintiff who claims a serious injury based on the "permanent consequential limitation" category has to establish that the injury is "permanent," and that the limitation is "significant" rather than slight ( see Altman v Gassman, 202 AD2d 265, 265 [1st Dept 1994]). Whether an injury is "permanent" is a medical determination, requiring an objective basis for the medical conclusion of permanency ( see Dufel, 84 NY2d at 798). Mere repetition of the word "permanent" in the physician's affirmation or affidavit is insufficient. ( See Lopez, 65 NY2d at 1019.)
The "significant limitation" category requires a plaintiff to demonstrate that the injury has limited the use of the afflicted area in a "significant" way rather than a "minor, mild or slight limitation of use" ( Licari, 57 NY2d at 236). In evaluating both "permanent consequential limitation" and "significant limitation," "[w]hether a limitation of use or function is significant' or consequential' . . . relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" ( Dufel, 84 NY2d at 798). Moreover, a "permanent consequential limitation' requires a greater degree of proof than a significant limitation,' as only the former requires proof of permanency" ( Altman, 202 AD2d at 651).
The 90/180-day category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury ( see Licari, 57 NY2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" ( id.). A physician's statement that is too general and non-specific does not support a 90/180-day claim ( see e.g. Morris v Ilya Cab Corp. , 61 AD3d 434 , 435 [1st Dept 2009]; Gorden v Tibulcio , 50 AD3d 460 , 463 [1st Dept 2008]).
Finally, "even where there is objective medical proof, when additional contributing factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition — summary dismissal of the complaint may be appropriate" ( Pommels v Perez, 4 NY3d 566, 572). Accordingly, a plaintiff is required to offer a reasonable explanation for a "gap in treatment" ( id. at 574; see also Colon v Kempner , 20 AD3d 372 , 374 [1st Dept 2005]).
DISCUSSION
In support of the summary judgment motion, defendants submit, inter alia, plaintiffs' bill of particulars; affirmed reports of radiologist Dr. A. Robert Tantleff, affirming his review of plaintiffs' MRIs; affirmed reports of Dr. R. C. Krishna, a neurologist who conducted neurological independent medical examinations ("IME") of plaintiffs; an affirmed report of Dr. S.W. Bleifer, an orthopedist who conducted an orthopedic IME of Steven Barbieri; and plaintiffs' depositions. ( See defendants' motion, exhibits B, C, D, E, F, G, H, I.)
There are five reports from Dr. Tantleff, which were prepared on behalf of defendants following an independent radiological review of the subject MRIs on May 30, 2008. With regard to Emily Barbieri, Dr. Tantleff indicates that an August 31, 2006 MRI of the cervical spine revealed diffuse discogenic changes of the cervical spine unrelated to the date of the accident and consistent with her age; and a September 1, 2006 MRI of the lumbar spine revealed advanced discogenic changes of the lumbar spine consistent with her age without evidence of acute or recent injury. As to Steven Barbieri, Dr. Tantleff indicates that an August 30, 2006 MRI of the cervical spine revealed diffuse discogenic changes unrelated to the date of the accident; an August 31, 2006 MRI of the lumbar spine revealed mild nonspecific discogenic changes consistent with Steven Barbieri's age and unrelated to the date of the accident; and a September 2, 2006 MRI of the right knee showed chondral defect tibial plateau posterolaterally, degenerative change of the anterior cruciate ligament consistent with overuse injury and no evidence of acute or recent trauma.
Dr. Krishna's January 30, 2008 neurological IME report for Emily Barbieri indicates that Dr. Krishna examined Emily Barbieri at defendants' request on January 29, 2008. Range of motion of the cervical spine showed flexion 45 degrees (normal is 45 degrees), extension 45 degrees (normal is 45 degrees), right and left lateral flexion 45 degrees (normal is 45 degrees) and bilateral rotation 80 degrees (normal is 80 degrees) with no complaints of pain. Range of motion of the thoracolumbar spine was found to be normal in flexion to 90 degrees (normal is 90 degrees), extension 30 degrees (normal is 30 degrees), right and left lateral rotation 30 degrees (normal is 30 degrees) and right and left rotation 30 degrees (normal is 30 degrees) with no complaints of pain. Dr. Krishna concluded that the examination was "normal," and that any cervical or strain injury had "resolved." Dr. Krishna also opined that Emily Barbieri could perform her daily activities without any restrictions, and that there were no neurological deficits identifiable on examination that would constitute a disability or permanency.
Dr. Krishna's January 30, 2008 neurological IME report for Steven Barbieri shows that Dr. Krishna examined Steven Barbieri at defendants' request on January 29, 2008. Range of motion of the cervical spine showed flexion 60 degrees (normal is 60 degrees), extension 45 degrees (normal is 45 degrees), R/L lateral flexion 45 degrees (normal is 45 degrees) and R/L rotation 80 degrees (normal is 80 degrees). Range of motion of the thoracolumbar spine revealed flexion 90 degrees (normal is 90 degrees), extension 30 degrees (normal is 30 degrees), R/L lateral rotation 30 degrees (normal is 30 degrees) and R/L rotation 30 degrees (normal is 30 degrees). Dr. Krishna concluded that the examination was "normal," and that any cervical or stain injury had "resolved." No opinion was given regarding the right knee injury. Dr. Krishna further opined that Steven Barbieri had "achieved pre-accident status," and that he could perform his daily living activities and work activities without any restrictions. There were no neurological deficits identifiable on examination that would constitute a disability or permanency.
Dr. Bleifer's February 12, 2008 orthopedic IME indicates that Steven Barbieri was examined by Dr. Bleifer at defendants' request on February 12, 2008. Range of motion of the cervical spine showed flexion 45 degrees (normal is 45 degrees), extension 60 degrees (normal is 60 degrees), right lateral flexion 45 degrees (normal is 45 degrees), left lateral flexion 45 degrees (normal is 45 degrees), right rotation 80 degrees (normal is 80 degrees) and left rotation 80 degrees (normal is 80 degrees). Range of motion of the lumbosacral spine/back revealed flexion 90 degrees (normal is 90 degrees), extension 30 degrees (normal is 30 degrees), right lateral bending 30 degrees (normal is 30 degrees), left lateral bending 30 degrees (normal is 30 degrees), right rotation 30 degrees (normal is 30 degrees) and left rotation 30 degrees (normal is 30 degrees). Range of motion of the right knee showed flexion 135 degrees (normal is 135 degrees), extension 0 degrees (normal is 0 degrees), internal rotation 20 degrees (normal is 20 degrees) and external rotation 20 degrees (normal is 20 degrees). Dr. Bleifer's diagnosis was: 1. Post traumatic cervical sprain — resolved; 2. Lumbosacral sprain — resolved; and 3. Right knee contusion — resolved. Dr. Bleifer also opined that Steven Barbieri could continue with activities of daily living as well as present employment, and that there was "no functional disability.
Further, when asked at her deposition if she was confined to her home for any period of time, Emily Barbieri replied: "About a week" ( id., exhibit I, Emily Barbieri's deposition at 22). She also stated that she was not "bedridden" during any of that period ( id.). Steven Barbieri's deposition reveals that he denied being confined to his home for any period of time ( id., exhibit H, Steven Barbieri deposition at 29-30). When he was asked if he lost any time from work, he replied: "Just one day" ( id. at 29).
Additionally, the bill of particulars alleges that Emily Barbieri was confined to bed between July 18, 2006 and July 19, 2006; and to home between July 18, 2006 and July 22, 2006 (bill of particulars at ¶ 13.) Steven Barbieri was confined to bed between July 18, 2006 and July 20, 2006, and to home between July 18, 2006 and July 24, 2006 ( id.). Neither plaintiff was incapacitated from employment ( id. at ¶ 14).
Based on the foregoing, the Court finds that defendants have established a prima facie case that neither plaintiff suffered a "serious injury" under the categories of permanent consequential limitation or significant limitation ( see Insurance Law § 5102 [d]). Defendants have submitted sufficient objective medical evidence demonstrating that plaintiffs had normal range of motion; suffered from no orthopedic or neurologic disability resulting from the accident; and that their injuries were resolved. ( See Gaddy, 79 NY2d at 956-57 [defendant established prima facie case "through the affidavit of a physician who examined [the plaintiff] and concluded that she had a normal neurological examination"]; Gorden, 50 AD3d at 462-63 [defendants met initial burden where affirmed reports of orthopedist and neurologist, made after a review of plaintiff's medical records and a personal examination, stated that plaintiff did not suffer from a neurologic or orthopedic disability and that the injuries were resolved]).
Defendants have also sustained their burden of proof with regard to the 90/180-day category. A defendant can establish the nonexistence of a serious injury under the 90/180-day category absent medical proof by citing to evidence, such as a plaintiff's own testimony, demonstrating that the plaintiff was not prevented from performing all of the substantial activities constituting his or her customary daily activities for the prescribed period ( see Copeland v Kasalica , 6 AD3d 253 , 254 [1st Dept 2004]). Here, the bill of particulars and plaintiffs' own depositions clearly indicate that plaintiffs were only confined to bed or home for less than one week during the period between July 18, 2006 and July 24, 2006. These time periods are far less than the 90/180 days required by the statute ( see id. [home and bed confinement for less than the prescribed period evinces lack of serious injury]).
Since the Court finds that defendants have established prima facie entitlement to summary judgment, the burden shifts to plaintiffs to produce evidentiary proof in admissible form demonstrating the existence of a genuine issue of fact sufficient to defeat defendants' motion ( see Gaddy, 79 NY2d at 957). In opposition to summary judgment, plaintiffs submit, inter alia, affirmed medical reports of Dr. Marc J. Rosenblatt, a doctor of osteopathy who conducted initial and recent examinations of plaintiffs; various unaffirmed medical records; and plaintiffs' affidavits and depositions ( see affirmation in opposition, exhibits A, B, C, D.)
The unaffirmed medical evidence consists of the same five MRIs that were reviewed by defendants' expert; a May 5, 2008 MRI of Steven Barbieri's right knee; and medical reports and physical therapy notes dated July 2006 through December 2006 ( id., exhibit D). With the exception of the five MRIs, none of the unsworn medical records are admissible. It is well settled that plaintiffs may not rely upon unsworn medical evidence to defeat defendants' summary judgment motion ( see Migliaccio v Miruku , 56 AD3d 393 , 394 [1st Dept 2008] ["Statements and reports by the injured party's examining and treating physicians that are unsworn or not affirmed to be true under penalty of perjury do not meet the test of competent, admissible medical evidence sufficient to defeat a motion for summary judgment."]; DeJesus v Paulino, 61 AD3d 605, 607 [1st Dept 2009] [unsworn emergency room records and other reports had no probative value]; Black v Regalado , 36 AD3d 437, 438 [1st Dept 2007]; Pagano, 182 AD2d at 270). The Court will, however, allow the five unsworn MRIs because defendants relied upon the same MRIs in support of the summary judgment motion ( see Ayzen, 299 AD2d at 381; Navedo v Jaime , 32 AD3d 788 , 789-90 [1st Dept 2006]).
The only affirmed medical evidence submitted by plaintiffs are two medical reports by Dr. Rosenblatt dated August 6, 2008 ( see affirmation in opposition, exhibit C). Each report contains Dr. Rosenblatt's findings from both his initial and recent re-examinations of plaintiffs. As a doctor of osteopathy, Dr. Rosenblatt may properly submit medical records by affirmation ( see CPLR 2106; Peplow v Murat, 304 AD2d 633, 633 [2d Dept 2003]).
As to Emily Barbieri, Dr. Rosenblatt notes that he initially examined her on July 26, 2006, and his impressions were status-post closed head trauma with facial trauma with secondary cephalalgic myalgias and occipital neuralgia, and rule out cervical and lumbosacral radiculopathy. The subsequent MRIs of the cervical and lumbosacral spine revealed multilevel degenerative disease and disc herniations. Dr. Rosenblatt states that he performed "comprehensive electrodiagnostic studies" on September 13, 2006, which revealed right-sided C6-7 cervical radiculopathy and right-sided L4-5 lumbosacral radiculopathy. He does not, however, specify what specific tests he performed. Nor does he set forth any range of motion results.
Dr. Rosenblatt re-examined Emily Barbieri on August 6, 2008, and opined that her injuries were "marked to severe" and "permanent," and that she would have difficulties with lifting, pushing, pulling and standing. He indicates that she had canal stenosis at L3-4 and herniated nucleus pulposus at C3-4, C5-6 and C6-7. Range of motion of the cervical spine revealed flexion 20 degrees, extension 10 degrees, right lateral side bending 20 degrees, left lateral side bending 20 degrees, rotation 20 degrees to the right and 25 degrees to the left. Thoracolumbar range of motion showed flexion 35 degrees, extension 10 degrees, right lateral side bending 20 degrees and left lateral side bending 20 degrees. Dr. Rosenblatt does not, however, compare the range of motion results to the normal range.
With regard to Steven Barbieri, Dr. Rosenblatt indicates that he originally examined Steven Barbieri on July 26, 2006, and his impressions were right knee derangement, and rule out cervical and lumbosacral radiculopathy. The MRIs revealed bulging and herniated discs, and a medial meniscus tear of the right knee. There was evidence of internal derangement of the right knee that was seen via positive McMurray sign and positive Apley's compression sign, and Dr. Rosenblatt referred Steven Barbieri to an orthopedic specialist. Dr. Rosenblatt also states that limitations of range of motion were noted throughout the cervical and lumbar spine. However, he does not set forth the degrees of the limitations, nor compare them to the normal range. Dr. Rosenblatt additionally states that he performed "comprehensive electrodiagnostic studies" revealing a right-sided C4-5 cervical radiculopathy, but he does not state what specific tests were performed.
Dr. Rosenblatt re-examined Steven Barbieri on August 6, 2008, and opined that he had a "permanent, marked disability," and would have limitations with pushing, pulling, lifting and ambulating on uneven surfaces and stairs. Examination of the knee continued to reveal positive McMurray sign and positive Apley's compression sign. Range of motion of the cervical spine revealed flexion 30 degrees, extension 10 degrees, right lateral side bending 15 degrees, left lateral side bending 15 degrees, rotation 20 degrees to the right and 25 degrees to the left. Thoracoloumbar range of motion revealed flexion 20 degrees, extension 15 degrees, right lateral side bending 20 degrees and left lateral side bending 20 degrees. Again, Dr. Rosenblatt fails to compare the range of motion findings to the normal range.
Plaintiffs allege additional limitations in their affidavits and depositions. Emily Barbieri asserts limitations on her ability to do housework, bend, lift, shop and lift at the gym. Steven Barbieri claims that the injuries prevent him from exercising properly, walking up and down stairs, driving and walking for prolonged periods.
Additionally, both plaintiffs state in their affidavits that they ceased treatment with Dr. Rosenblatt in December 2006, despite continuing to have pain. They were purportedly informed by Dr. Rosenblatt that their insurance carrier would no longer pay for the therapy. Dr. Rosenblatt's report notes that Emily Barbieri was ultimately terminated from her physical therapy program due to a chart review by the insurance carrier's physician.
Considering the evidence in the light most favorable to plaintiffs ( see Kesselman v Lever House Restaurant , 29 AD3d 302 , 304 [1st Dept 2006]), the Court concludes that plaintiffs have failed to present sufficient objective medical evidence to establish a genuine issue of fact sufficient to defeat summary judgment ( see Dembele v Cambisaca , 59 AD3d 352 [1st Dept 2009]). The MRIs do not, in and of themselves, establish a serious injury (see e.g. Noble, 252 AD2d at 394 ["the existence of a herniated disc does not per se constitute serious injury"]).
Moreover, even accepting that plaintiffs' spine and knee injuries were medically verified by the MRIs, "it was still incumbent upon plaintiff[s] to provide objective evidence of the extent or degree of the alleged physical limitations resulting from the injuries and their duration" ( id.; see also Taylor v American Radio Dispatcher, Inc. , 63 AD3d 407 , 407 [1st Dept 2009] [tear of the meniscus of right knee requiring surgery was insufficient to raise issue of fact "absent objective, contemporaneous evidence of the extent and duration of the alleged physical limitations"]; Arjona, 7 AD3d at 289). Plaintiffs have failed to sustain this burden because the remaining objective medical proof — Dr. Rosenblatt's two reports — are insufficient to raise an issue of fact necessitating a trial.
To raise a triable issue of fact, Dr. Rosenblatt's positive findings "had to be accompanied by objective findings of either a specific percentage of the loss of range of motion or a sufficient description of the qualitative nature of plaintiffs' limitations based on the normal function, purpose and use of the body part" ( Vasquez, 28 AD3d at 366; see also Toure, 98 NY2d at 350; Otero v 971 Only U, Inc. , 36 AD3d 430 , 431 [1st Dept 2007]). As to the initial examinations of both plaintiffs, however, Dr. Rosenblatt fails to set forth either what specific "comprehensive electrodiagnostic studies" he performed, or state any range of motion results at all. Consequently, there is a complete absence of any objective, contemporaneous evidence of the extent and duration of the alleged limitations. (See Taylor, 63 AD3d at 407; Singh v Mohamed , 54 AD3d 933 , 934-35 [2d Dept 2008] [plaintiff was unable to establish the duration of spinal injuries in the absence of contemporaneous findings of range-of-motion limitations in his spine]; Thompson v Abbasi , 15 AD3d 95 , 98 [1st Dept 2005] ["there are no objective findings contemporaneous with the accident showing any initial range-of-motion restrictions on plaintiff's cervical spine"]).
Dr. Rosenblatt's recent examinations of plaintiffs are similarly insufficient to defeat defendants' motion. Although he sets forth numerical ranges of motion for both plaintiffs, Dr. Rosenblatt fails to make the requisite comparison to what the normal range of motion should be, thereby leaving the Court to speculate as to the meaning of those figures. ( See Vasquez, 28 AD3d at 366 [plaintiff failed to meet burden of proving serious injury were medical submission set forth range of motions of plaintiffs' cervical and lumbosacral spines but failed to "specify what objective tests, if any, their doctor performed to get such measurements, or what the normal range of motion should be"]; Mickens v Khalid , 62 AD3d 597 , 597 [1st Dept 2009] [orthopedist failed to compare range of motion findings to normal range]; Dembele, 59 AD3d at 352 [same]; Gorden, 50 AD3d at 462 [same]).
Plaintiffs' submissions are also insufficient to raise an issue of fact as to the 90/180-day category. There is a complete absence of sufficient objective medical proof to support a 90/180-day claim ( see Nelson, 308 AD2d at 340 [claims that plaintiff could no longer dance, mop or walk like before was not supported by objective proof substantiating 90/180-day claim]; Mickens, 62 AD3d at 598). Moreover, the limitations of which plaintiffs complain — i.e., limitations regarding housework, exercise, ambulating stairs, shopping, bending, lifting and driving long periods — do not establish a sufficient curtailment of "substantially all" of their usual and customary daily activities for the requisite time period ( see Dembele, 59 AD3d at 352 [plaintiff's complaints that his knee hurt when he drove or walked up more than four steps did not constitute the loss of "substantially all" of his usual activities]; Otero, 36 AD3d at 431).
Finally, the submissions reveal a gap in treatment of over a year and a half, which plaintiffs attempt to address by stating that they were informed by Dr. Rosenblatt that their insurance carrier would no longer pay for their physical therapy ( see Pommels, 4 NY3d at 572; Francovig v Senekis Cab Corp. , 41 AD3d 643 , 644 [2d Dept 2007]). In view of the foregoing findings, which are dispositive, the Court deems it unnecessary to reach the question of whether the gap in treatment has been adequately explained.
The Court recognizes that summary judgment is a drastic remedy since it deprives a litigant of his or her day in court ( see Andre v Pomeroy, 35 NY2d 361, 364). The Court nevertheless concludes that defendants are entitled to summary judgment because they established a prima facie case that plaintiffs did not sustain a "serious injury," and plaintiffs failed to present a triable issue of fact sufficient to preclude summary judgment.
For these reasons and upon the foregoing papers, it is,
ORDERED that defendants' motion for summary judgment is granted; and it is further,
ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendants, dismissing the complaint in its entirety, with costs and disbursements to defendants as taxed by the Clerk; and it is further,
ORDERED that defendants shall serve a copy of this order, with notice of entry, upon plaintiffs.
This constitutes the Decision and Order of the Court.