Defendants move pursuant to CPLR § 3212 for judgment dismissing plaintiff's complaint on the ground that she failed to sustain a "serious injury" as defined in section 5102 (d) of the Insurance Law. Plaintiff opposes the motion.

This personal injury action arises from a motor vehicle accident that occurred on July 11, 1998 on Dyer Avenue, at the intersection of West Thirty-Sixth Street, New York City. Subsequently, plaintiff went to the emergency room at Long Island College Hospital, where she was advised by the examining physician to get bed rest, use warm compresses, and where she was given

pain medication. Approximately one week after the accident, because her symptoms and pain continued, she visited Herbert Wiener, M.D., a nearby family practitioner, with whom she treated [*2]for about one year. She first saw him three times per week; subsequently, the treatments were reduced to twice per week, then once per week. Finally, after about a year past the accident, treatments were further reduced, first to twice per month, then once per month.

In her verified bill of particulars dated June 29, 2000 plaintiff alleged the following injuries: L5-S1 disc bulge, with sac compression; lumbar radiculopathy; based on an MRI of the lumbosacral spine, a reduction in height of the L5-S1 disc, with diffuse disc bulge with sac compression; lower and mid-back pain; lower back stiffness and pain, radiating down the right leg; straightening of the lumbar spine, with paravertebral tenderness, muscle spasm and restriction of motion; restriction of motion as to flexion and extension; recurrent pain and paresthesias down both legs; muscuculoskeletal pain in the lower bac; numbness in both legs; a contusion and sprain of the right knee; a joint effusion; medullary bone infarct or another nonaggressive lesion of the distal femur; pain, swelling and stiffness of the right knee; contusion/sprain of the right ankle; pain and stiffness of the right ankle; pain in both ankles; tenderness and swelling of that ankle, and the preceding necessitated physical therapy, with diathermy, a TENS unit, whirlpool and exercise program.

Defendants maintain that the above-described injuries are "soft tissue" in nature, and that plaintiff has therefore failed to meet the threshold requirements of section 5102 (d) of the Insurance Law. Plaintiff asserts that she has suffered a "serious injury" as defined in that section. Section 5102 (d) defines a "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; significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent 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 no less than 90 days during the 180 days immediately following the occurrence of the injury or impairment." The intent of this statute is to weed out frivolous claims and to limit recovery to significant injuries (Dufel v. Green, 84 NY2d 795 2 [1995]; see also Licari v. Elliott, 57 NY2d 230, 235-37, 239 [1982]). As such, in order to satisfy the statutory "serious injury" threshold, objective proof of a plaintiff's injuries is required (Lopez v. Senatore, 65 NY2d 1017, 1019 [1985]); subjective complaints of pain alone are insufficient to establish a prima facie case of a "serious injury" (Gaddy v. Eyler, 79 NY2d 955, 957 [1992]; Scheer v. Koubek, 70 NY2d 678, 679 [1987]). Thus, in order to establish a prima facie case of a "serious injury," a plaintiff must come forward with competent, objective medical evidence, predicated on the performance of objective tests (Grossman v. Wright, 268 AD2d 79 [2d Dept., 2000]). Defendants possess the initial burden of demonstrating entitlement to judgment based on establishment of a prima facie case that plaintiff has not sustained a "serious injury" in contemplation of the statute (Gaddy v. Eyler, supra; Licari v. Elliott, supra).

On July 9, 2001, at defendants' request, plaintiff was examined by Jacqueline Emmanuel, M.D., an orthopedic surgeon. Aside from her examination and evaluation of plaintiff, Dr. Emmanuel reviewed her verified bill of particulars; her emergency room records from Long [*3]

Island College Hospital; MRI reports of the lumbar spine and the right knee, dated August 25, 1998; MRI reports of the right ankle, dated September 1, 1998; a September 28, 1998 report of EMG/NCV tests of the lower extremities; a narrative report, dated September 7, 1999, from Herbert Wiener, M.D.; a narrative report, dated January 17, 1999, from Joshua S. Fink, M.D., and medical notes.

Upon examining plaintiff, Dr. Emmanuel found full range of motion of the thoracolumbar spine in all planes. The range of motion of the lumbar spine revealed forward flexion to ninety degrees, which she characterized as normal; extension was to thirty degrees, characterized similarly; right lateral flexion was normal, to forty-five degrees, and left lateral flexion was also normal, to forty-five degrees. The thoracolumbar lordosis was normal, and neither tenderness nor a paravertebral muscle spasm was noted. Straight-leg raising and Patrick's test were negative bilaterally and plaintiff's gait was normal. Deep tendon reflexes were equal and symmetrical in the lower extremities; muscle strength was normal, and there was no evidence of atrophy.

Upon examination of plaintiff's right knee, Dr. Emmanuel found neither tenderness nor swelling, and full range of motion was found in all planes. The knee was stable to valgous and varus stressing, and the range of motion was normal, to 130 degrees, with normal external and internal rotation, to ten degrees. There was no quadricep atrophy, and there was no patellofemoral crepitus.

Dr. Emmanuel concluded that there was a resolved sprain of the lumbar spine and of the right knee, and that based on plaintiff's history, the alleged injuries were causally related to the July 11, 1998 motor vehicle accident. There existed no causally-related disability, however, and without restrictions, plaintiff would be able to participate in daily activities and to work, with no

need for continuation of treatment, medical supplies, household help, diagnostic testing or special transportation.

On that same date, again at defendants' request, neurologist Naunihal S. Singh examined plaintiff, who reported lower back and right knee pain. In conjunction with his examination and evaluation, he reviewed the same documents that had been supplied to Dr. Emmanuel.

As to plaintiff's cervical spine, Dr. Singh found that in lateral bending, flexion and rotation, movements were normal, with no detection of tenderness in the cervical region. With respect to her lumbar spine, he found that the straight-leg raising test was possible up to ninety degrees, and that plaintiff could bend up to ninety degrees, but tenderness was noted at T12. Dr. Singh observed that plaintiff's gait and station were normal, and that she could walk tandem and on her heels. Overall, there were no abnormalities neurologically, and he concluded that there had been "soft tissue" sprains of the lumbar spine, with derangement of the right knee. There existed no necessity for additional treatment, examination or follow-up neurologically, and there was no neurological disability. Similar to Dr. Emmanuel, he concluded that plaintiff could resume normal duties and activities without restrictions.

Based on the preceding, defendants have met their initial burden of demonstrating entitlement to judgment, as a matter of law, thereby shifting the burden to plaintiff, who must establish a prima facie case of the presence of a "serious injury," warranting denial of defendants' motion (Gaddy v. Eyler, supra; Licari v. Elliott, supra). [*4]

To buttress her position that genuine, material, triable issues exist, plaintiff submits

her personal affidavit, dated September 14, 2004, and an affirmation from Dr. Herbert Wiener, dated September 10, 2004. In her affidavit, plaintiff avers that she has suffered, and continues to suffer, permanent and long-lasting injuries. When she first saw Dr. Wiener, she reports, the pain in her lower back had worsened, and she already could not perform household chores, take care of her children or adequately perform her work duties. The lower back pain was shooting down into her right leg, which had become numb. In addition, she experienced severe pain, stiffness and swelling of her right knee and ankle.

Plaintiff notes that when she was first examined by Dr. Wiener, he informed her that she lacked a normal curvature, that her back had straightened and that she had muscle spasms. Her right knee pain was quite severe, and she could not raise her right leg.

Plaintiff subsequently details her physical therapy regimen and treatments with Dr. Wiener, emphasizing that because of her continuing pain and disability, he advised her to leave work for almost four months after the accident; in actuality, she missed some six and a half months from work. Although she admits experiencing some improvement after that four-month period, she still found it necessary to see Dr. Wiener, and she did so, even as the frequency was reduced, for at least one year following the accident.

On August 18, 2004, Dr. Wiener, who had by that time retired from active medical practice, performed a follow-up examination and evaluation of plaintiff, who found that the swelling in her right knee persisted, that her right leg was numb, and that she could hardly raise it. He also detected a "clicking" of that knee.

Plaintiff concludes that she has great difficulty lifting and carrying objects of more

than a couple of pounds. She can neither run nor play with her children as she used to, and only the swelling of her right ankle has lessened.

Dr. Wiener, a board-certified family practitioner, records in his September 10, 2004 affirmation that he first saw plaintiff within the first week after her accident. At that time, she complained of low back stiffness, pain radiating down into her right leg and numbness. She also complained of pain and stiffness of her right ankle.

His physical examination revealed straightening of the lumbar spine, with paravertebral tenderness, muscle spasm and significant restriction of motion, and her right straight-leg raising was thirty degrees. He also found swelling of plaintiff's right knee, with flexion and extension findings of a lack of five degrees. There was also tenderness and swelling of the right ankle, along with restrictions of motion.

Dr. Wiener then proceeds to detail the physical therapy regimen and treatment he prescribed for plaintiff, and also discusses the MRI's conducted by Diagnostic Imaging, on August 25 and September 1, 1998, of plaintiff's lumbosacral spine, right knee and right ankle, respectively. Not only does he detail their findings, but Dr. Wiener emphasizes that he personally reviewed the reports and the films, and he indicates how they confirmed his previous findings.

When Dr. Wiener re-examined and re-evaluated plaintiff on August 18, 2004, he [*5]indicates in his affirmation, she again complained of low back pain radiating into the right leg. He reports that her symptoms were aggravated by repeated sitting, standing, bending and lifting objects of more than ten pounds. At this late date, he found that she still had restrictions of motion of the lumbosacral spine, straight-leg raising restriction of thirty degrees and right side bending at fifteen

degrees; her right knee was still swollen and tender and enlarged as compared to the left, and plaintiff had crepitus in that knee. His latest diagnosis was bulging of the L5-S1 disc, with radiculopathy, significant symptoms of the low back, internal derangement and persistent swelling of the right knee, and derangement of the lumbosacral spine. His considered medical opinion was that the injuries to her lower back were permanent, with restriction of backward motion, straight-leg raising and right side bending; that these injuries, plus those to her right knee, have resulted in permanent consequential loss of use, and the right knee had internal derangement, crepitus, significant restriction of motion, continuing pain, swelling and residual enlargement.

In reply to plaintiff's opposition to their motion, defendants argue that Dr. Wiener's affidavit is insufficient to rebut their entitlement to judgment, as a matter of law. First, they assert that the affidavit is devoid of objective, competent medical evidence. For example, defendants maintain that Dr. Wiener's affirmation falls short of meeting the guidelines set forth in Toure v. Avis Rent a Car Systems, Inc., et al., 98 NY2d 345 (2002). Moreover, defendants claim that plaintiff has failed to explain and account for the four-year gap between examinations and treatments by Dr. Wiener, who, according to defendants, fails to record tests he performed to induce the listed muscle spasms, as well as what range of motion tests were conducted. Finally, defendants submit that Dr. Wiener's affirmation was merely tailored to meet the statutory language defining the threshold requirements (see, e.g., Gaddy v. Eyler, supra; Worley v. Griffith, 273 AD2d 303 [2d Dept., 2000]), and that any tests conducted by Dr. Wiener were premised on plaintiff's subjective complaints of pain, which alone are insufficient to warrant a finding of a "serious injury" (Scheer v. Koubek, supra.)

This Court determines that plaintiff has met her burden of establishing a genuine,

material, triable issue as to whether she suffered a "serious injury" in contemplation of section 5102 (d) of the Insurance Law. First, it should be noted that Dr. Wiener specifically points to objective tests that he conducted and upon which he relied in formulating his diagnosis. With regard to plaintiff's lower back and lumbosacral spine, he does ascribe a specific percentage of the limitation of plaintiff's range of motion. Even among the areas of his examinations and evaluations where he did not provide quantitative analyses, however, Dr. Wiener sufficiently described the "qualitative nature" of plaintiff's limitations, "based on the normal function, purpose and use of the body part" (see Toure v. Avis Rent a Car Systems, Inc., et al., supra). In addition, he attributed the limitations of plaintiff's physical activities to the nature of the injuries sustained by opining that plaintiff's difficulty in sitting, standing or walking for any extended period of time were natural and expected consequences of her injuries (Melino v. Lauster, 195 AD2d 653 [3d Dept., 1993]), aff'd, 82 NY2d 828 [1993]). This Court therefore concludes that it cannot be said that the alleged limitations of plaintiff's lower back, lumbosacral spine and right knee are so "minor, mild or slight" as to be considered insignificant within the meaning of section 5102 (d) of the Insurance Law (Licari v. Elliott, supra). Dr. Wiener's opinion was supported by objective medical evidence, including MRI [*6]tests, reports and films, which he appropriately indicated that he interpreted and reviewed, paired with his personal observations upon examining and evaluating plaintiff. Thus, plaintiff has demonstrated that a genuine, material, triable issue exists as to whether he sustained injuries that created a "significant limitation of a body function or system;" Insurance Law § 5102 (d).

Defendants are correct in asserting that the diagnosis of a bulging or herniated disc in and of itself does not constitute a "serious injury" (see, e.g., Manzano v. O'Neil, 285 AD2d 966

[4th Dept., 2001], reversed on other grounds 98 NY2d 345, 353, n. 4 [2002]; Rose v. Furgerson, 281 AD2d 857 [3d Dept., 2001], leave denied 97 NY2d 602 [2001]; Pierre v. Nanton, 279 AD2d 621 [2d Dept., 2001]; Noble v. Ackerman, 252 AD2d 392 [(1st Dept., 1998]). Nonetheless, Dr. Wiener's analysis was sufficient in ascribing the "qualitative nature" of these injuries and that they were natural consequences of the subject accident.

While medical testimony concerning observations of a spasm may constitute objective evidence in support of a "serious injury" claim, defendants are correct that it must be objectively ascertained; failure to describe the tests, if any, performed to induce the spasm leaves the objective requirement as unsatisfied. This failure, however, does not alone result in derailing plaintiff's case.

As to the MRI reports and films, they constitute objective medical evidentiary proof. Here, unlike Nitti v. Clerico, 98 NY2d 345 (2002), a companion case to Toure, where plaintiff's expert merely mentioned the MRI report without testifying as to its findings or that it supported his diagnosis, Dr. Wiener does all of these things in his affirmation, clearly indicating that he reviewed and interpreted the reports and the films, and that they supported his diagnosis. While it is true that Dr. Wiener did not attach a copy of the MRI reports and/or films to his affirmation, he stated that he actually reviewed and interpreted them (cf. Sherlock v. Smith, 273 AD2d 95 [1st Dept., 2000]), where the court emphasized that a sworn copy of the MRI report would be a necessary attachment to his affidavit where Dr. Harrison, plaintiff's expert, failed to show that he had himself reviewed and interpreted the report. Consequently, in this case, unlike in Sherlock, the doctor's opinions possessed probative value. Moreover, Dr. Wiener performed objective tests to support his ultimate conclusions, without merely relying on plaintiff's subjective complaints of pain (Scheer v. Koubek,

supra; see also Sherlock v. Smith, supra).

Finally, defendants urge that this Court grant their motion and dismiss plaintiff's complaint based on her failure to explain the five-year gap between Dr. Wiener's last examination

and treatment and his August 18, 2004 re-examination and re-evaluation of plaintiff (see, e.g., Graves v. Liu, 273 AD2d 440 [2d Dept., 2000]), where it was held that plaintiff's medical proof was insufficient where it failed to explain and account for a twenty-two-month gap in treatment (see also Williams v. Ciaramella, 250 AD2d 763 [2d Dept., 1998]), where a finding by the examining physician of a 23% permanent partial impairment of the left shoulder was insufficient to overcome the gap in treatment and the failure to explain and account for it. Defendants' position, although not without appeal and with supportive case law, is nevertheless unavailing (Manzano v. O'Neil, 98 NY2d 345, 355 [2002]). In that decision, which is a companion case to Toure v. Avis Rent a Car Systems, Inc., et al., supra, the Court of Appeals ruled that Ms. Manzano had sufficiently established [*7]a prima facie case of a "serious injury." In so finding, one of the questions which that court addressed was premised on defendant's contention that dismissal of the complaint was required because a more than four-year gap existed between the subject examination and the trial. In rejecting this contention, the court emphasized that the examining physician had concluded that plaintiff would have obtained no additional benefits by continuing her treatments. In the present case, plaintiff indicates in her affidavit in opposition that even while being treated by Dr. Wiener, she sought additional methods of treatment, such as acupuncture, but was unfortunately not helped by them, and that Dr. Wiener informed her that since several of her conditions were permanent, she would have to "learn to live with [her] loss of function and use of [her] low [sic] back, right leg and

knee;" and Dr. Wiener, in his September 10, 2004 affirmation, also stresses the permanency of several conditions. Thus, it seems clear that the decreasing frequency over time of plaintiff's treatment and physical therapy with Dr. Wiener was associated with the general lack of improvement

in her situation and that she would no longer benefit from additional treatment.

Finally, it is unnecessary for this Court to decide whether the requirements of the 90/180-day category have been met, since plaintiff need only show that she has met the threshold requirement for one of the statutory categories.

Accordingly, for the foregoing reasons, defendants' motion for summary judgment dismissing the complaint on the ground that plaintiff has failed to demonstrate that she suffered a "serious injury" as defined in section 5102 (d) of the Insurance Law is hereby denied.

This constitutes the decision and order of the Court.

Dated: Brooklyn, New York

March 3, 2005

DELORES J. THOMAS

Judge Civil Court