Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint on the ground that the injuries sustained by plaintiff Terry Mitchell fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is granted, and the complaint is dismissed.

This matter arises out of a two vehicle accident which occurred on July 31, 2004, on Tompkins Avenue at its intersection with St. John's Avenue, Staten Island, New York. As a result, plaintiff claims to have sustained "serious" personal injuries, i.e., " 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; and a medically determined injury or impairment of a non-permanent nature which prevented plaintiff from performing substantially all of the material acts which constitute plaintiff's usual and customary daily activities for more than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (Plaintiff's February 3, 2006 Verified Bill of Particulars, para 23(d) [Defendants' Exhibit B]). More particularly, plaintiff claims to have sustained, inter alia, "posterior bulging disc at L4-L5 deforming the thecal sac and bilateral L5 nerve roots; posterior bulging disc at L5-S1 extremity into the fat abutting the thecal sac and bilateral L5 nerve roots; L5-S1 right-sided radiculopathy confirmed by abnormal EMG results at the L5-S1 level; straightening of the cervical spine, and numbness and tingling in the right forearm, hand and fingers" (id., para 6). It is undisputed that plaintiff subsequently re-injured her spine, right arm and right leg in a work-related accident on September 10, 2005 (see Plaintiff's April 26, 2006 Deposition, p 16, Defendants' Exhibit C).

In support of their motion for summary judgment, defendants have submitted the June 3, 2006 affirmation of an orthopedist, Dr. Paul Post, who found that plaintiff "[did] not exhibit [*2]causally related permanence to the accident of July 31, 2004", and further, that her "symptomatology [sic]...outweighs the lack of objective physical findings on examination" (see Defendants' Exhibit E).

In opposition, plaintiff has attached, inter alia, a personal affidavit detailing her subjective complaints and course of physical therapy wherein she concedes that "on September 10, 2005, while at work, [she] slipped and fell on a liquid substance on the floor" and is currently "no longer able to work at all" (see January 17, 2007 Affidavit of Plaintiff; para 28). In addition, plaintiff has attached (1) the affirmed narrative report of a neurologist, Dr. Farshad David Hannanian, who diagnosed plaintiff with "cervicalagia, sprain of the cervical spine, muscle spasms of the cervical spine, C5-C6 radiculopathy, lumbalgia, sprain of the lumbosacral spine, disc bulge at L4-L5, a herniated disc at L5-S1 and right sided radiculopathy at L5-S1, as of his final, i.e., May 11, 2005 examination of plaintiff (Plaintiff's Exhibit C), and (2) the January 2, 2007 affirmation of a radiologist, Dr. Robert Scott Schepp, who attached his September 10, 2004 MRI report of plaintiff's lumbosacral spine. The purported January 19, 2007 "affirmation" of plaintiff's chiropractor, Dr. John Piazza, was not considered by this Court as it is not in compliance with CPLR 2106.

In the opinion of this Court, defendants have made a prima facie showing that plaintiff did not sustain a serious injury as a result of the July 31, 2004 accident through the affirmation of their medical expert (see Holmes v. Hanson, 286 AD2d 750, citing Duldulao v. City of New York, 284 AD2d 296; Villalta v. Schechter, 273 AD2d 299; Nisnewitz v. Renna, 273 AD2d 210; Guzman v. Michael Mgt., 266 AD2d 508; Kosto v. Bonelli, 255 AD2d 557). Accordingly, it became incumbent upon plaintiff to come forward with medical evidence demonstrating the existence of a triable issue of fact that she had suffered a causally related serious injury as a result of the 2004 accident (see Gaddy v. Eyler, 79 NY2d 955).

In the opinion of this Court, plaintiff has failed to meet her burden (see Franchini v. Palmieri, 1 NY3d 536).

Dr. Hannanian's affirmation is insufficient to establish a causal connection between the accident in question and plaintiff's injuries, as he first saw plaintiff over five months after the incident, and only treated her from January 10, 2005 to May 11, 2005. At that time, he discharged plaintiff since further treatment "was only palliative in nature" (see Affirmation of Dr. Hannanian, para 55). Moreover, in order to demonstrate that plaintiff had sustained "serious" injury, Dr. Hannanian was required to explain the medical significance, if any, of his finding that plaintiff had tested "positive" in straight-leg-raising (see Nagbe v. Minigreen Hacking Group, 22 AD3d 326, 327). "To raise a triable issue of fact, those 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 plaintiff's limitations based on the normal function, purpose and use of the body part" (Vasquez v. Reluzco 28 AD3d 365, 366). Finally, there is no medical evidence (1) of any causal connection between Dr. Schepp's MRI findings and the accident (see Smith v. Brito, 23 AD3d 273), or (2) that plaintiff was unable to perform substantially all of the material acts that constituted her usual and customary daily activities for at least 90 of the first 180 days following the accident.Accordingly, it is

ORDERED, that defendants' motion for summary judgment is granted and the complaint is dismissed; and it is further [*3]

ORDERED, that the Clerk enter judgment in favor of defendant and against plaintiff Terry Mitchell.

E N T E R,

Dated:March 16, 2007/s/ Hon. Philip G. MinardoJ.S.C.