"Consequently, the burden shifted to MARTINEZ to raise a triable issue of fact that he sustained a serious injury. "Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint." (See Thompson v. Abbasi, 15 AD3d 95, 97 [1st Dept. 2005]; Bent v. Jackson, 15 AD3d 46 [1st Dept. 2005]). In Opposition MARTINEZ submits the affirmation by Dr. R.C. Krishna, who performed one neurological consultation on January 12, 2005, (Plaintiffs' Exhibit "M"); and the Affirmation by Dr. Bruce Campbell, a Radiologist, who comments on the MRI of the "L" Spine, (presumably the lumbar spine) taken March 2, 2002. (Plaintiffs' Exhibit "J") which is meshed together with the unaffirmed report of Dr. Campbell and includes his findings regarding only MARTINEZ's cervical spine but also his lumbar spine (Plaintiff's Exhibit J). Also tendered are what appears to be billing records of Suma Medical Services. a electromyography Study regarding Carpal Tumel Syndrome and the presence of nerve root ivitation at C5-6.
Arjona v. Calcano , 7 AD3d 279 (1st Dept. 2004); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003) (Defendant relied on plaintiff's bill of particulars to establish the absence of a serious injury).It is well settled that in order to establish the existence of a serious injury, a plaintiff is required to provide objective medical evidence of injury. Blackmon v. Dinstuhl , 27 AD3d 241 (1st Dept. 2006); Thomson v. Abassi, 15 AD3d 95 (1st Dept. 2005); Nemchyonok v. Ying , 2 AD3d 421 (2nd Dept. 2003); Pajda v. Pedone, 303 AD2d 729 (2nd Dept. 2003); Jimenez v. Kambli, 272 AD2d 581 (2nd Dept. 2000). Toulson v. Young Han Pae , 13 AD3d 317 (1st Dept. 2004);Perez v. Rodriguez , 25 AD3d 506 (1st Dept 2006).
Further, Defendants' expert, Dr. Nason reported that she reviewed the same records as well as Dr. Sarhin's report. As such, this medical evidence is in admissible form (see Lee Yuen v Arka Memory Cab Corp., 80 AD3d 481, 915 NYS2d 529 [1st Dept 2011]; Thompson v Abbasi, 15 AD3d 95, 97, 788 NYS2d 48 [2005]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [2003]).
With respect to Plaintiff's claim under the 90/180 category of Insurance Law ยง5102(d), Plaintiff's injuries must restrict her from performing "substantially all" of her daily activities to a great extent rather than some slight curtailment (Szabo v. XYZ, Two Way Radio Taxi Ass'n, Inc., 700 NYS2d 179 [1999]; Thompson v. Abbasi, 788 NYS2d 48 [1st Dept 2005]; Hernandez v. Rodriguez, 63 A.D.3d 520 [1st Dept 2009]). Plaintiff's Verified Bill of Particulars indicates that she was confined to bed and home for two weeks.
Dr. Dowling asserts that his November 9, 2005 examination, which includes a cervical range of motion test, in conjunction with the September 6, 2005 CT scan, establishes a timely contemporaneous examination supporting permanency and limitations for purposes of serious injury" pursuant to Insurance Law ยง 5102 (d)" (See Pommel v Perez, supra, Thompson v Abbasi , 15 AD3d 95, 100-101 [1st Dept 2005]. These results do indicate the normal standard range of motion as the second number in each report and therefore the test is valid.
Although Dr. Berg provides no objective evidence or rationale to support his conclusion regarding causation ( see Offman v Singh, 27 AD3d 284, 285 [1st Dept 2006]; Thompson v Abbasi, 15 AD3d 95, 99 [1st Dept 2005]; Webb v Johnson, 13 AD3d 54 [1st Dept 2004]), Dr. Hughes's findings are enough to demonstrate plaintiff did not sustain a permanent or significant limitation of functioning. ( Thompson v Abbasi, 15 AD3d at 96; Bent v Jackson, 15 AD3d 46, 47 [1st Dept 2005]; Brown v Achy, 9 AD3d 30, 31 [1st Dept 2004].)
Defendants established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law ยง 5102 (d) as a result of an automobile accident. Specifically, defendants submitted the affirmed report of a neurologist who, upon examining plaintiff and performing objective tests with range of motion calculations, concluded that she had a normal range of motion of the lumbar and cervical spine, despite positive MRI findings ( see Thompson v Abbasi, 15 AD3d 95, 96). They also submitted plaintiffs bill of particulars and deposition testimony, which reveal that plaintiff was confined to bed and home for only a few weeks after the accident. Plaintiff failed to raise a triable issue of fact as to whether a serious injury was sustained.
Defendants established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not sustain a serious injury as a result of the car accident between the parties. Specifically, defendants submitted the affirmed report of a neurologist who, upon examining plaintiff and performing objective tests, concluded that she had a normal range of motion of the lumbar and cervical spine, despite positive MRI findings ( see Thompson v Abbasi, 15 AD3d 95, 96). They also submitted plaintiff's bill of particulars and deposition testimony, which reveal that plaintiff was confined to bed and home for only a few weeks after the accident. Plaintiff failed to raise a triable issue of fact that a serious injury was sustained within the meaning of Insurance Law ยง 5102 (d). Despite the positive MRI report, there were no objective findings immediately following the accident to demonstrate any initial range-of-motion restrictions on plaintiff's cervical and lumbar spine, or any detailed explanation for their omission ( Thompson, 15 AD3d at 98).
To the extent Dr. Singh's range-of-motion findings indicated deficiencies secondary to complaints of pain, such findings were insufficient to raise a triable issue of fact ( see Shaw v Looking Glass Assoc, LP, 8 AD3d 100). To the extent Dr. Singh found the leg-raising test was restricted, this did not create an issue as to serious injury, particularly since Uddin demonstrated a lack of cooperation with Singh's testing efforts, and plaintiffs' own physicians earlier reported either a "negative" or a mere "trace" positive result on the straight-leg test ( see e.g. Thompson v Abbasi, 15 AD3d 95, 98). The MRIs, which indicated herniated discs, inter alia, were unsupported by other competent medical evidence that the herniation caused a significant limitation or a permanent consequential limitation of a body function or part ( see Nagbe v Minigreen Hacking Group, 22 AD3d 326; Thompson, 15 AD3d at 97).
Once defendant establishes that plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. To that end, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries (Noble v Ackerman, 252 AD2d 392, 394-395 [1st Dept 1998]). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002]; Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Blackmon v Dinstuhl, 27 AD3d 241, 242 [1st Dept 2006]; Thompson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Shinn at 198; Andrews v Slimbaugh, 238 AD2d 866, 867-868 [2d Dept 1997]; Zoldas v Louise Cab Corporation, 108 AD2d 378, 382 [1st Dept 1985]). Such contemporaneous medical evidence, however, can be an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or "an expert's qualitative assessment of a plaintiff's condition also may suffice, 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 at 350; see also Perl v Meher, 18 NY3d 208, 218 [2011] ["We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."]). Additionally, in order to raise an issue of fact as to the existence of a serious injury the medical evidence presented must include a recent examination of the plaintiff at which the injuries are objectively established (Bent v Jackson, 15 A