Motion (No. 2931) of defendants KATHLEEN HAMM and EILEEN HAMM for summary judgment dismissing the complaint as against them based on plaintiff's alleged failure to sustain a "serious injury" is denied, and plaintiff's cross motion (No. 3344) for partial summary judgment on the issue of liability is granted; the cross motion (No. 3567) for summary judgment of defendant WILLIAM E. PUCCIO is denied as academic.

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained in an intersection collision which occurred on May 22, 2004 in Staten Island. Plaintiff was a front-seat passenger in a vehicle owned and operated by defendant WILLIAM E. PUCCIO when that vehicle collided with a vehicle owned by defendant KATHLEEN HAMM and operated by defendant EILEEN HAMM. As a result of said collision, plaintiff is alleged to have sustained serious injuries including, inter alia, a herniated disc in the cervical area, aggravation of a serious pre-existing lumbar spine condition, and the fracture of stabilization rods placed in her spine some nine years earlier. Plaintiff further alleges that following the accident, she suffered, e.g., chronic severe neck and back pain; limitations in motion, rotation and range of motion of her lumbar and cervical spines; and an aggravation of the preexisting arthritic condition of her left shoulder and both hips. Finally, plaintiff claims that her condition is permanent.

In moving for summary judgment on the ground that plaintiff has not sustained a "serious injury" under section 5102(d) of the Insurance Law, defendants KATHLEEN and EILEEN HAMM (hereinafter collectively "HAMM") contend that plaintiff has failed to establish that she suffers from any significant limitation of use of a body function or system; any permanent consequential limitation of use of a body organ or member; or any permanent loss of use of any body organ, member, function or system as a result of the subject accident. Only minor limitations in movement are claimed. Thus, while plaintiff claims, e.g., to have suffered a herniated disc as a result of the accident, HAMM contends that she has failed to adduce any objective medical evidence establishing either the extent or degree of her physical limitation as a result thereof, or that any such injury is [*2]causally related to the subject accident.

To the contrary, HAMM argues that plaintiff injured her back in a work-related accident in January 1994, and underwent a spinal fusion in November 1995 in order to relieve her pain and discomfort. Accordingly, she is alleged to have suffered neck, shoulder and lower back pain radiating into her legs for many years prior to the collision. Moreover, while plaintiff claims that the rods in her back were fractured as a result of this accident, HAMM claims that the medical proof indicates that her spinal fusion is stable and intact, and that she does not require any treatment in addition to the physical therapy and acupuncture that she was receiving before the accident. Finally, HAMM contends that plaintiff has failed to establish that she was unable to perform substantially all of her normal daily activities for at least 90 of the first 180 days following the accident as required by the No-Fault law. In support of this claim, HAMM cites to so much of plaintiff's EBT testimony as indicates that she was disabled and remained at home except for visits to the doctor prior to the accident, and that her activities remained similarly restricted after the accident.

HAMM has also submitted the affirmed report of an orthopedic surgeon, Dr. Gregory Montalbano, who recently examined the plaintiff and reviewed her medical records relating both to her prior back injury and the treatment she has received since the subject accident. Upon his examination, Dr. Montalbano reported limited range of motion of plaintiff's thoracic spine and significant loss of range of motion of her lumbar spine. However, Dr. Montalbano opined that these limitations were the result of a pre-existing degenerative condition of the cervical spine with spondylosis that was first reported in 1994, and that the claimed central C6 disc herniation is attributable to a degenerative condition that has worsened naturally over the past 10 years rather than as a result of the motor vehicle accident. In addition, the doctor noted that a pre-existing condition of spondylolistheses at L5-S1 with degenerative disc disease was also reported back in 1994, and that plaintiff underwent a spinal fusion in 1995 to the correct the problem. According to Dr. Montalbano, his diagnosis is consistent with the lack of objective medical proof that the recent acute injury caused any substantial or permanent injury to plaintiff's lumbar spine, and that the current symptoms are substantially related to plaintiff's pre-existing condition.

In his cross motion for like relief, defendant WILLIAM E. PUCCIO (hereinafter PUCCIO) has adopted the arguments and proof submitted by HAMM.

In support of her cross motion for partial summary judgment against HAMM, plaintiff contends that the police accident report contains a statement attributed to defendant EILEEN HAMM wherein she admits changing her mind about which way she should turn in the middle of the intersection, and that this change in direction preceded the collision with defendant PUCCIO's vehicle, which was traveling through the intersection behind her.

With regard to her claims of serious injury, plaintiff admits sustaining a serious back injury in 1994, and concedes that she was subsequently required to undergo a spinal fusion. However, plaintiff contends that her condition was improving prior to the 2004 accident, and that she subsequently experienced, inter alia, severe lower back pain with bilateral lower extremity burning, a "clicking" in her lower back, and severe pain in her cervical spine. According to plaintiff, she has also experienced an increase in the frequency of urination since the accident and suffers from occasional incontinence. Finally, plaintiff contends that an MRI of her cervical spine taken several months after the accident shows a central C6 disc herniation that was not noted previously.

In further support of her claim of serious injury, plaintiff has submitted the affidavit of an [*3]orthopedic surgeon, Dr. Thomas Haher, who had been treating plaintiff for spondylolisthesis since 1995. It was Dr. Haher who performed the spinal fusion with instrumentation and bone grafting that resulted from the work-related injury to her lumbosacral spine that she suffered in1994.Since then, plaintiff has visited this doctor annually so that he can monitor her progress. In the opinion of Dr. Haher, plaintiff has been permanently and totally disabled since 1995, and he advised her to not return to work.However, plaintiff's condition was said to have stabilized as a result of physical therapy, and her lumbar pain had begun to subside prior to the subject accident.

When plaintiff visited Dr. Haher after the accident, she allegedly complained that the pain in her lower back had worsened, and she exhibited new symptoms such as a radiating bilateral burning in her lower extremities, urinary urgency, incontinence and severe pain in her cervical spine with upper extremity numbness and weakness. X-rays and an MRI were ordered, which revealed fracturing of the internal fixation rods that were positioned during the November 1995 surgery, as well as a disc herniation at the C6 level. According to Dr. Haher, his review and interpretation of the above diagnostic tests; his detection of cervical muscle spasms and restrictions in cervical range of motion; the elicitation of right-sided radiating pain upon cervical compression; and plaintiff's persistent complaints of severe cervical and worsening lower back pain all lead him to conclude with a reasonable degree of medical certainty that plaintiff's internal fixation rods had been fractured as a result of the May 2004 motor vehicle accident, and that these fractures had compromised the stability of her spinal fusion. It was Dr. Haher's further opinion that plaintiff's lumbar symptoms were exacerbated by the 2004 collision, causing her unrelenting pain and a further significant reduction of range in motion of her lumbosacral spine. According to this doctor, plaintiff also sustained a cervical disc injury secondary to the May 2004 motor vehicle accident that has produced a permanent and significant limitation of use of plaintiff's cervical spine, including a 50% restriction of cervical rotation and extension. Finally, Dr. Haher opined that the May 2004 accident was a substantial factor in causing the loss of use and the permanent consequential limitation of plaintiff's bladder function.

In opposition to plaintiff's cross motion on the issue of liability, HAMM contends that the issue of negligence in an automobile accident is particularly one for the jury, and that plaintiff has failed to establish either that her driver (defendant PUCCIO) was free from negligence, or that his actions were not a cause of the accident. In this regard, HAMM submits an excerpt from PUCCIO's EBT testimony wherein he admits, inter alia, that he entered the intersection at approximately 25 miles per hour. HAMM claims that such testimony raises a triable issue of fact regarding PUCCIO's negligence that is sufficient to preclude summary judgment on the issue of liability.

As to plaintiff's claim of serious injury, HAMM contends that the fracture of a stabilization rod is not a "bone" fracture, and hence cannot constitute a serious injury under Insurance Law §5102(d) (see Catalan v. Empire Stor Warehouse, 213 AD2d 366). Additionally, HAMM contends that Dr. Haher's affidavit is insufficient, as it fails to address plaintiff's preexisting degenerative spinal condition or note that plaintiff had undergone prior MRIs and physical therapy related to the condition of her cervical spine. HAMM observes that plaintiff's pre-accident medical records are replete with notations regarding neck pain and a cervical spine condition, and that she was still undergoing physical therapy related to the spinal injury up to the week prior to the subject accident. Additionally, HAMM contends that Dr. Haher's affidavit fails to set forth any objective tests or measurement to substantiate the claimed reduction in range of motion of plaintiff's lumbosacral [*4]spine, and there is no objective evidence of the extent or degree of plaintiff's alleged physical limitations or their anticipated duration. Finally, HAMM contends that plaintiff has failed to establish that the 2004 accident caused any additional limitation in her physical activities, since she was already disabled and retired at the time of the accident.

In an action seeking to recover damages for personal injuries sustained in a motor vehicle accident, it is axiomatic that a plaintiff must plead and prove that he or she sustained a "serious injury" within the meaning of Insurance Law §5102(d) (see Licari v. Elliott, 57 NY2d 230). Nevertheless, on a defendant's motion for summary judgment on this threshold issue, it is incumbent upon the movant to make a prima facie showing that plaintiff did not sustain a serious injury as a result of the underlying motor vehicle accident. Once this is established, it becomes plaintiff's burden to come forward with sufficient evidence to raise a triable issue of fact on a serious injury, or the motion will be granted (see Gaddy v. Eyler, 79 NY2d 955).

Here, it is the opinion of this Court that defendants have successfully met their evidentiary burden through the affirmed report of an orthopedic surgeon who both examined plaintiff and reviewed her medical records before concluding that there was no objective evidence of an orthopedic disability to her cervical or lumbar spine that could be related to the subject motor vehicle accident. According to this physician, it is plaintiff's significant pre-existing condition of lumbar spondylolisthesis to which her current symptoms are largely attributable. Moreover, the doctor opined that plaintiff's central C6 disc herniation is the result of a degenerative condition of the cervical spine that has worsened naturally over the past 10 years. It is this condition rather than the 2004 accident that defendants' expert opines is the source of plaintiff's continued complaints of pain and restrictions in motion.

Nevertheless, defendants' threshold motion must be denied.

On the papers presently before this Court, plaintiff has successfully rebutted defendants' prima facie case through the affirmation of her treating physician, which is adequate to raise triable issues of fact as to whether, e.g., plaintiff's allegations of new or exacerbated injuries are legally sufficient to satisfy the statutory requirement.In this regard, it is pertinent to note that defendants' own physician reported a significant loss in plaintiff's lumbar range of motion, and while that physician attributed these limitations to a pre-existing condition, plaintiff's orthopedic surgeon takes a contrary view. Dr. Haher claims that the cervical muscle spasm which he detected in plaintiff during his post-accident examination was not previously present and that such spasm and the disc herniation limited plaintiff's rotation, extension and overall loss of function of the cervical spine by as much as 50%. In addition, the MRI results, x-rays and positive cervical compression testing furnished this doctor with an objective basis for his diagnosis of plaintiff's cervical disc injury, as well as the fracture of the internal fixation rods which were stated to have compromised the stability of plaintiff's 1995 spinal fusion. All of the above were stated by plaintiff's physician to be consistent with her persistent and worsening complaints of lower back and leg pain; pain radiating into the right upper extremity; headaches and decreased urinary function. Although the experts do not agree, credibility is not in issue on a motion for summary judgment (see Rapaport v. Sears, Roebuck, 28 AD3d 449, 450), and the findings of plaintiff's expert are sufficient to raise triable issues of fact regarding plaintiff's claims of serious injury under both the "significant limitation of use" and "permanent consequential limitation of use" categories set forth in Insurance Law §5102(d) (see Toure v. Avis Rent A Car Sys., 98 NY2d 345). [*5]

With regard to any claim by plaintiff under the "permanent loss of use" category of injury, there is no proof that the 2004 accident caused plaintiff to suffer a "total" loss of use of any body organ, member, function or system as required under this category of "serious injury" (see Oberly v. Bangs Ambulance, 96 NY2d 295, 299). In this regard, it is worth noting that plaintiff's treating physician stated that she was totally disabled and unable to return to work after her 1994 injury. Moreover, with regard to any claim that plaintiff was unable to perform substantially all of her customary and usual daily activities during at least 90 of the first 180 days following the 2004 accident. Thus, while plaintiff claims that she was confined to bed for three weeks immediately following the 2004 accident and that her pain had worsened, the proof indicates that her activities both before and after the 2004 accident were essentially the same, i.e., that there were no additional activities from which she was precluded by the 2004 accident. Accordingly, plaintiff has failed to demonstrate that the accident in question resulted in a significant curtailment of her usual daily activities (see Palmer v. Moulton, 16 AD3d 933, 935).

As for plaintiff's cross motion for partial summary judgment against HAMM on the issue of liability, it is the opinion of this Court that the latter has failed to rebut plaintiff's prima facie showing that the actions of defendant/driver EILEEN HAMM were the sole proximate cause of this accident, or to raise a triable issue of fact on the question. Here, the essential facts are not in dispute. EILEEN HAMM started to make a left turn at the subject intersection, and then suddenly realized that she should have turned right. When she abruptly reversed her direction, she collided with defendant PUCCIO. While the question of negligence ordinarily is one of fact for the jury (see Ugarriza v. Schmieder, 46 NY2d 471, 473-474), the proof before this Court is susceptible of only one interpretation, i.e., that negligence on the part of EILEEN HAMM caused this accident. For her part, MS. HAMM does not contest these facts, but claims that the speed at which codefendant PUCCIO entered the intersection may have contributed to the accident. The Court disagrees. The EBT testimony purportedly relied on by HAMM places PUCCIO less than two-car lengths behind her and traveling at a speed of 20-25 miles per hour. Under these circumstances, even if PUCCIO failed to reduce his speed upon entering the intersection, there is no proof to suggest that a reduction in speed was warranted prior to HAMM's abrupt change in direction. In this context, HAMM's suggestion that the accident could have been avoided if PUCCIO had reduced his speed constitutes pure speculation (see Bagnato v. Romano, 179 AD2d 713, 714, lv denied 81 NY2d 701).

With regard to defendant PUCCIO, this Court has the undoubted authority pursuant to CPLR 3212(b) to search the record and award summary judgment to a nonmoving party with respect to an issue before the Court (see Dunham v. Hilco Constr. Co., 89 NY2d 425, 429-430). In this case, given the above conclusion that the negligence of EILEEN HAMM was the sole proximate cause of the accident, it is appropriate that this Court exercise such authority to grant summary judgment in favor of defendant PUCCIO on any and all causes of action against him. As a result, PUCCIO's cross motion for dismissal of the complaint based on plaintiff's alleged failure to sustain a serious injury has been rendered academic.

With the issue of liability thus resolved, the case should proceed to trial on the issue of whether plaintiff sustained a serious injury and, in the event of a plaintiff's verdict, damages (see Zecca v. Riccardelli, 293 AD2d 31).

Accordingly, it is

ORDERED that defendants' motion and cross motion for summary judgment are denied; and [*6]it is further

ORDERED that plaintiff's cross motion for partial summary judgment on the issue of liability as against defendants KATHLEEN and EILEEN HAMM is granted; and it is further

ORDERED that upon searching the record, the complaint and all cross claims against defendant WILLIAM E. PUCCIO are hereby severed and dismissed; and it is further

ORDERED that the matter be set down for trial on the remaining issues upon the filing of the necessary papers and the payment of any required fees; and it is further

ORDERED that the Clerk shall enter judgment accordingly.

E N T E R,

J.S.C.

Dated: Feb. 5, 2007