This motion by defendant for leave to make a summary judgment motion and for summary judgment dismissing plaintiffs' complaint is granted.

Plaintiffs were allegedly injured in a motor vehicle accident on January 8, 2001 when their vehicle was struck from behind by defendant's vehicle. Plaintiffs filed suit claiming injuries that included, for plaintiff Charlotte Petinrin ("Charlotte"), a tear in the medial meniscus of the right knee, bulging lumbar discs, cervical and lumbar sprain, shoulder pain, headaches and aggravation of preexisting cervical and lumbar conditions. Plaintiff Amos Petinrin ("Amos") alleged bulging cervical and lumbar discs, cervical and lumbar sprain, bilateral shoulder sprain, headaches and aggravation of preexisting cervical and lumbar conditions.

Plaintiffs filed their note of issue in October 2002. Supreme Court Justice Sallie Manzanet vacated the note of issue by Order dated December 20, 2002. No subsequent note of issue has been filed. At the close of discovery, defendant moved for permission to make a summary judgment motion and for dismissal of the plaintiffs' complaint for their failure to show they had suffered a serious injury as a result of the subject accident.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre [*2]v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). A motion for summary judgment shall be made within 120 days after filing of the note of issue unless an earlier date is specified by the court (Civil Practice Law and Rules ["CPLR"] § 3212[a]).

In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a "permanent loss of use of a body organ, member, function or system", 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 prevents the injured person from performing substantially all of the material acts which constitutes such person's usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."

The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Licari v. Elliot, 57 NY2d 230).

To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v. Pomelito, 121 AD2d 783 [3rd Dept 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v. Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805; Gaddy v. Eyler, 167 AD2d 67, aff'd, 79 NY2d 955). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v. Koubek, 70 NY2d 678 [1987]). The "substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied, 96 NY2d 708).

An affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury (Grossman v. Wright, 268 AD2d 79 [3rd Dept 2000]; see also Zoldas v. Louise Cab Co., 108 AD2d 378 [1st Dept 1985]). The affirmation must set forth the objective medical tests and quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "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 (cite omitted)" (Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 378)..

Although a bulging or herniated disc may constitute a serious injury, the plaintiff must provide objective evidence of the extent or degree of alleged physical limitation resulting from the disc injury and its duration (Duldalao v. City of New York, 284 AD2d 296 [2nd Dept 2001]). A plaintiff's subjective complaints of pain are insufficient, without more, to establish that [*3]herniated discs constitute a serious injury (Pierre v. Nanton, 279 AD2d 621 [2nd Dept 2001]).

Permission to make a summary judgment motion in this instance was unnecessary since there is no valid note of issue currently on file (see CPLR § 3212[a]). Therefore this motion is properly made.

In support of the motion, defendant offered portions of the deposition testimony of both plaintiffs; the emergency room reports; unaffirmed MRI reports of Charlotte's cervical and lumbar spine; unaffirmed reports by Dr. J.D. Francois, neurologist; affirmation and reports by Dr. Herbert Sherry and affirmed reports of Dr. Joseph L. Paul, orthopedic surgeon.

At her deposition on April 25, 2002, Charlotte testified that she missed three weeks of work as a result of the accident and then returned to her normal schedule. She stated that she works an eight-hour night shift as a nursing supervisor, then completes an eight-hour shift as a school nurse and was thus employed on the date of the accident. The emergency room report shows that she complained of neck, back and knee pain, "ambulates well" and noted an impression of neck, back and knee strains as a result of the subject accident. She was given Motrin and released. Charlotte testified that there is nothing she cannot do now that she was able to do before the accident (Deposition of Charlotte Petinrin, April 25, 2002 at 86). She testified, however, that there are things she cannot do as well as before including climbing stairs; she must use a walker and cane and "hold on to the stairs" and she needs help carrying groceries.

Reports of MRI examinations taken of Charlotte's cervical and lumbar spine on January 21 and January 28, 2001, respectively, showed loss of fluid content in all cervical discs and some lumbar discs, osteophytes and disc bulging in the cervical and lumbar spine.

Dr. Paul examined Charlotte for the no-fault carrier on May 15, 2001, four months after the accident. He noted that Charlotte's initial complaints were of neck, thoracic spine, lower back, both shoulders, right hand and right knee and that she received chiropractic treatment and acupuncture following the accident. He noted that she "did not require the use of any assistive device." Dr. Paul concluded that Charlotte, 60 years old at the time, had suffered back, neck, shoulder and knee sprains and contusion to her right hand which had all resolved, she suffered from no current disability and was capable of all normal activities.

Dr. Sherry, defendant's expert, examined Charlotte on May 5, 2003. He noted that she was diabetic, had hypertension and suffered a fracture to her left knee one year prior to the subject accident. Charlotte complained that her right leg bothers her. Dr. Sherry reported that Charlotte walked with a cane "that she does not use", that she spends equal time on either extremity and has equal stride. Dr. Sherry stated that the physical examination revealed that Charlotte had degenerative joint disease involving both knees which "obviously" predated the alleged accident. He reviewed an MRI report of Charlotte's right knee, performed on February 4, 2001, and noted that the "medial collateral ligament is bowed by underlying osteophyte." Dr. Sherry found no objective orthopedic evidence of residual directly related to the accident.

Amos testified at his deposition on April 25, 2002 that he still has occasional pain and stiffness in his neck on a daily basis, for which he sits down and rests or bends his neck for relief. The emergency room report for Amos on the day of the accident showed that he presented with a complaint of neck pain. He was given a soft collar and released. Dr. Francois examined Amos, 62 years old at the time, on January 10, 2001. Amos reported having injured his neck and head during the accident and complained of "nonconstant" headache, neck stiffness and pain and [*4]lower back pain. Dr. Francois' impression was of cervical, lumbar and bilateral shoulder sprain. Dr. Francois recommended physical therapy and MRI testing. At the follow-up examination on February 21, 2001, Dr. Francois found Amos' neck to be "supple and symmetric", but the lumbar spine was still limited in its range of motion. At re-evaluation on February 18, 2001, Dr. Francois reported that Amos was feeling no pain or discomfort except for mild lower back and neck pain. Dr. Francois recommended a "physical therapy only as needed", analgesic "if needed" and "resting in bed when pain is present."

Dr. Paul examined Amos on May 15, 2001 when he complained of neck pain. Dr. Paul found full range of motion in Amos' cervical spine, concluded that Amos had suffered a cervical sprain which had resolved and recommended no further treatment. Dr. Sherry examined Amos on May 5, 2003 and found no objective orthopedic evidence of residual directly related to the subject accident.

In opposition to the motion, plaintiffs offered more reports by Dr. Francois, the affirmation of Dr. John T. Rigney, a radiologist who reported the results of MRIs taken of Charlottee's and Amos' cervical and lumbar spine, and unaffirmed reports by Dr. Denise Martino, Dr. Steven S. Klein and Jerry R. Szych, D.C. Plaintiffs did not offer the original reports of the MRI examinations of Charlotte's cervical and lumbar spine or right knee, referenced by Dr. Rigney in his affirmation.

Dr. Francois examined Charlotte on October 13, 2003. Dr. Francois stated that her last visit with him was on April 17, 2001, two and one-half years earlier. He reported that she complained of neck, lower back, right shoulder and right knee pain. His diagnosis was traumatic bilateral knee sprain/strain with a right meniscal tear and traumatic sprain/strain of her cervical and lumbar spine. He offered the opinion that her injuries were causally related to the subject accident and that she had suffered a "significant limitation in use and function of her neck, back and right knee." He stated that, based on the MRI results, Charlotte was a candidate for arthroscopic surgery, but that he deferred additional opinion regarding her knees to an orthopedist. He recommended bed rest when pain is present, application of ice and heat to affected areas and analgesics when necessary. Dr. Francois attached the results of computer range of motion studies but did not describe how those tests were performed or whether they constituted objective measurement of the patient's range of motion. He did not otherwise offer an objective basis for his opinion or explain how the unspecified pre-existing "condition" of Charlotte's cervical and lumbar spine were aggravated.

Amos was also examined by Dr. Francois on October 13, 2003. Amos complained of neck and lower back pain. According to Dr. Francois, Amos was still working part-time in his original line of work at age 65. Dr. Francois' diagnosis was chronic traumatic sprain/strain of the cervical and lumbar spine with disc bulges and one herniation. Dr. Francois opined that Amos suffered a "significant limitation in the use and function" of his cervical and lumbar spine and would need "periodic physical therapy for palliative relief during times of flare-ups" with analgesics at the patient's discretion. Dr. Francois attached the results of computer range of motion studies but did not describe how those tests were performed or whether they constituted objective measurement of the patient's range of motion. He did not otherwise offer an objective basis for his opinion or explain how the unspecified pre-existing "condition" of Amos' cervical and lumbar spine was aggravated. [*5]

Defendant has established his entitlement to summary judgment which plaintiffs have not refuted with admissible medical evidence. Defendant met his burden of showing by admissible medical evidence that the plaintiffs suffered from sprain injuries which have completely resolved and that both plaintiffs suffer from pre-existing degenerative conditions of their neck, back and, in Charlotte's case, knees. Plaintiff's expert affirmations do not explain the two and one-half year gap in treatment between their last treatment with Dr. Francois and his re-evaluations on October 13, 2003, nor his failure to recommend further treatment beyond occasional rest and analgesics (see Grossman, 268 AD2d 79). Plaintiffs have offered no evidence to show that Charlotte's meniscal tear or bulging discs have caused a significant limitation in her activities. Her deposition testimony established that she continues to work 16-hour days as a school nurse and nursing supervisor. Her testimony that she cannot do certain things "like she used to" is not sufficient to show a significant or permanent limitation as a result of the subject accident. Plaintiffs cannot create an issue of fact by submitting conclusory affirmations of experts whose opinions merely parrot the language of the statute and even contradict the plaintiffs' own testimony regarding their continuing complaints or limitations. Despite Amos' claim of bulging and herniated discs in his cervical and lumbar spine, his deposition testimony was devoid of any mention of back pain and he stated that his headaches occur only occasionally and neck pain can be relieved by resting and bending his neck, certainly a "mild, minor or slight" limitation (see Broderick, 241 AD2d 898; Gaddy, 167 AD2d 67). Loss of one to three weeks of work is not enough to satisfy the 90 out of 180 day requirement of the statute and neither plaintiff has demonstrated that "substantially all" of their usual and customary activities were curtailed for 90 days after the accident (see Berk, 278 AD2d 156).

The complaint is, therefore, dismissed in its entirety. Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.

This constitutes the decision and order of the court.

Dated: February 24, 2004

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..