Opinion
0019403/2002.
Decided October 20, 2004.
ORDERED that this motion by defendants, William Falconer and Michael W. Falconer, for an order granting summary judgment dismissing the complaint on the ground that the plaintiff, Bridget Sullivan, did not sustain a "serious injury" within the meaning of NY Insurance Law § 5102(d) is granted and the complaint is hereby dismissed.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained on May 14, 2001 as the result of a motor vehicle accident. It is alleged that plaintiff's vehicle was stopped, waiting to make a left turn, when the defendants' vehicle attempted to pass plaintiff's vehicle on the right and struck the right rear of plaintiff's vehicle. As a result of the accident, plaintiff claims to have suffered numerous soft tissue injuries, including "posterior disc bulging at C3-4," as well as cervical and lumbar strains/sprains. In support of their motion, defendants submitted the affirmed report of an examining neurologist who saw plaintiff on September 30, 2003, at which time she gave a history of having received initial treatment after the accident at a hospital emergency room, followed by a course of "rehabilitation treatments for approximately three to six months" and a second course of chiropractic treatments for an additional three to six months. She claims to have lost several weeks from her employment as a counselor for the developmentally disabled. When seen by the neurologist, she complained of periodic neck pain and persistent lower back discomfort. It was reported, however, that she had full range of motion of the neck and both shoulders, as well as the lower torso, with no spasm or tenderness. Straight leg raising was full at 90 degrees and both the foraminal compression test and Kemp's maneuver were negative. Muscle strength was full and sensation was intact. In the opinion of the physician, plaintiff sustained a cervical and lumbosacral strain/sprain which had resolved with no neurologic deficits, no pathology or radiculopathy.
Defendants also submitted the affirmed report of an orthopedist who examined plaintiff on October 2, 2003 and found that she had full range of motion of the cervical and thoracolumbar spine with no tenderness or spasm. She also had a normal motor and sensory examination of the upper and lower extremities. A report of an MRI taken on May 30, 2001 indicates that the plaintiff "does have preexisting degenerative changes in her lumbar spine" but she has no disability and is able to work in full capacity without restriction. In view of the foregoing, the defendants met their initial burden of establishing, as a matter of law, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) ( see McKinney v. Lane , 288 AD2d 274, 733 NYS2d 456 [2nd Dept 2001], citing Gaddy v. Eyler , 79 NY2d 955, 591 NE2d 1176, 582 NYS2d 990; Licari v. Elliott , 57 NY2d 230, 441 NE2d 1088, 455 NYS2d 570).
In order to effectuate the purpose of no-fault legislation to reduce litigation, a court is required to decide, in the first instant, whether a plaintiff has made out a prima facie case of "serious injury" sufficient to satisfy the statutory requirements ( Licari v. Elliott , 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088; Brown v. Stark , 205 AD2d 725, 613 NYS2d 705 [2nd Dept 1994]). If it is found that the injury sustained does not fit within the definition of "serious injury" under Insurance Law § 5102(d), then the plaintiff has no judicial remedy and the action must be dismissed ( Licari v. Elliott , supra, at 57 NY2d 238; Velez v. Cohan , 203 AD2d 156, 610 NYS2d 257 [1st Dept 1994]). A "serious injury" is defined 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; significant limitation of use of a body function or system; 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 constitutes 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." (Insurance Law § 5102 [d]).
In opposition to the motion, plaintiff submitted the affidavit of her treating chiropractor, who first saw her on July 5, 2001. At that time, spasm was noted in the paracervical and paralumbar muscles. Range of motion testing of the cervical spine reportedly revealed the following: flexion 45/35; extension 55/50; left lateral flexion 45/25; right lateral flexion 45/30; left rotation 70/55; right rotation 70/45. Range of motion testing of the lumbar spine showed flexion 70, extension 15, left lateral flexion 25, right lateral flexion 25, left rotation 25, right rotation 20. While it is stated in the report that plaintiff was treated through November 2001, there is no notation about plaintiff's condition at the time she was discharged from care. Moreover, no diagnosis is given by the chiropractor. Plaintiff also submitted the affirmed report of the radiologist who performed an MRI of the cervical spine on August 7, 2001 and reportedly found no disc herniation but posterior bulging at C3-4. The affirmed report of the radiologist who performed an MRI of the lumbar spine on May 29, 1001 was also submitted. The test reportedly showed a "transitional lower intervertebral disc" at S1-2, but the remaining discs were otherwise unremarkable.
It is the conclusion of this Court that plaintiff has failed to raise a triable issue of fact that she sustained a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system, or a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. There is no objective evidence of injury or comparison of objective findings with plaintiff's condition prior to the accident, and otherwise there is no medical evidence whatsoever to support an opinion that the underlying accident caused any permanent injuries. Moreover, there is no objective evidence of the length of time that the plaintiff suffered any limitation of use of a body function or system, and she did not submit objective evidence substantiating the existence of a medically-determined injury which caused her extended absence from work ( see Ersop v. Variano , 307 AD2d 951, 953, 763 NYS2d 482 [2nd Dept 2003]).
Although a bulging or herniated disc may constitute a "serious injury" within the meaning a Insurance Law § 5102(d), a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration ( see Monette v. Keller , 281 AD2d 523, 721 NYS2d 839 [2nd Dept 2001]). While tests conducted shortly after the accident revealed a cervical disc bulge, there is no evidence that the disc bulge still exists today or even that it persisted for 90 out of the 180 days following the accident, as no there were subsequent x-rays or MRI exams to document the lasting nature of Plaintiff's injury ( see D'Amato v. Mandello , 2 AD3d 482, 767 NYS2d 894 [2nd Dept 2003]). Since the plaintiff failed to provide proof in admissible form of objective evidence of the extent or degree of the alleged physical limitations and their duration sufficient to raise a triable issue of fact, the motion must be granted and the complaint dismissed ( see Malpica v. Lavergne , 294 AD2d 340, 741 NYS2d 731 [2nd Dept 2002]).