Defendant's motion for summary judgment dismissing the complaint on the ground that the injuries sustained by plaintiff Dina Terlizzi fail to meet the statutory threshold of "serious injury" as defined in Insurance Law §5102(d) is granted.

This matter arises out of a two vehicle accident which occurred on January 6, 2004, on Slosson Avenue at its intersection with Westwood Avenue in Staten Island, New York. As a result, each plaintiff claims to have sustained "serious" personal injuries "in every respect except death or dismemberment and is expected at the time of the trial to have sustained economic loss greater than basic economic loss" (Plaintiffs' June 10, 2005 Verified Bill of Particulars, para 7 [Defendant's Exhibit B]). To the extent relevant, the plaintiff at issue is claimed to have sustained, inter alia, "left paracentral T7-T8 disc protrusion causing flattening of the left ventral thecal sac; T9-T10 left paracentral disc protrusion, and limited range of motion of the neck and lower back" (Id., para 6). The co-plaintiff is not involved in this motion.

In support of the motion for summary judgment, defendant has submitted (1) the May 17, 2006 affirmation of an orthopedic surgeon, Dr. Joseph Y. Margulies, who found Dina Terlizzi to have a "resolved" strain of her cervical and lumbar spine (see Defendant's Exhibit D); (2) the April 6, 2006 affirmation of a neurologist, Dr. Naunihal Sachdev Singh, who concluded that Ms. Terlizzi had "no neurologic disability related to the motor vehicle accident on January 6, 2004" (see Defendant's Exhibit E), and (3) the March 8, 2006 affirmation of a radiologist, Dr. David A. Fisher, who after reviewing the MRIs of Ms. Terlizzi's thoracic spine, found "clear evidence of degenerative changes...[and] preexisting condition" (see Defendant's Exhibit F).

In opposition, Ms. Terlizzi has attached, inter alia, a personal affidavit detailing her [*2]subjective complaints and her course of physical therapy. While she concedes that she suffered "a prior injury to [her] back that required an MRI", Ms. Terlizzi maintains that she was "asymptomatic" at the time of the accident (Plaintiff's January 10, 2007 Affidavit of Merit, Plaintiff's Exhibit B, para 3). In addition, she has attached (1) the affirmed narrative report of a neurologist, Dr. Igor Stiler, who diagnosed this plaintiff with "traumatic thoracic radiculopathy with multiple herniated discs; traumatic cervico-thoracic derangement; and traumatic lumbar derangement...causally related to the accident which occurred [on] January 6, 2004" (Plaintiff's Exhibit C), and (2) the January 22, 2007 affirmation of a prior treating neurologist, Dr. Stephen Kulick, who opined that Ms. Terlizzi was free from all signs of neurological disability associated with the prior injury as of November 19, 2001 (see Plaintiff's Exhibit F).

In the opinion of this Court, defendant has made a prima facie showing that Ms. Terlizzi did not sustain a serious injury on January 6, 2004 through the affirmations of her medical experts (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 on the question of serious injury (see Gaddy v. Eyler, 79 NY2d 955).

In the opinion of this Court, plaintiff has failed to sustain this burden.

Here, the affirmation of Dr. Kulick is only relevant to rebut defendant's claim of a preexisting injury. The task of demonstrating a causally related "serious" injury (see Franchini v. Palmieri, 1 NY3d 536), fell to plaintiff's remaining doctor, Dr. Stiler, who failed to explain the medical significance, if any, of his finding that Ms. Terlizzi had tested "positive" in straight-leg-raising (see Nagbe v. Minigreen Hacking Group, 22 AD3d 326). "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). In this case, there is neither. Moreover, there is no medical evidence (1) of any causal connection between plaintiff's MRI findings and this accident (see Smith v. Brito, 23 AD3d 273), (2) of plaintiff's claimed inability to perform substantially all of the material acts that constituted her usual and customary daily activities during 90 of the first 180 days following this accident, or (3) distinguishing plaintiff's purported post accident injuries from the degenerative changes revealed in the MRI (see Mullings v. Huntwork, 26 AD3d 214).

Accordingly, it is

ORDERED, that defendant's motion for summary judgment dismissing so much of the complaint as relates to plaintiff Dina Terlizzi is granted, and it is further

ORDERED, that the complaint on the part of said plaintiff is severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

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