In this action for damages arising out of a motor vehicle accident, defendant moved at the end of the People's case for a directed verdict, dismissing plaintiff's cause of action on the ground that plaintiff failed to prove, as a matter of law, that plaintiff sustained a serious physical injury as defined by Insurance Law Section 5102.

The accident in question took place on January 14, 2004. The plaintiff, Terrence Jones, was heading Southbound on 189th Street between 89th and 90th Avenues in Queens County when his motor vehicle was struck by the car driven by defendant, Evelyn Cesar, as she was pulling out of a curbside parking space. The front of defendant's car struck the passenger side of the plaintiff's car forcing plaintiff's car into a parked vehicle. Plaintiff testified that as a result of the accident, his back, right shoulder and right knee were injured.

The defendant conceded liability and the case proceeded to trial on the issue of damages only.

Following the accident, the plaintiff, a forty-three year old route driver for the Phoenix Beverage Company, did not leave the scene in an ambulance or immediately seek treatment. However, the next day he went to his personal physician and to Mary Immaculate Hospital. At the hospital, x-rays were taken of his back and knee and he was given a prescription for pain medication. Plaintiff was not able to return to work for two weeks. During that time he began treatment with Dr. Randazzo, a chiropractor, Dr. Parker, an orthopedist, and Dr. Vaccarino, a physical therapist. The orthopedist, Dr. Parker, recommended that plaintiff have MRIs taken of his back, right knee, and right shoulder.

Mr. Jones testified that when he finally returned to work he was not able to lift, bend or pick up cases of beverages as he did prior to the accident. For three and a half to four months after the accident he was only able to do driving and paper work. Plaintiff testified that in addition to the limitations at his job, his injuries effected his ability to play with his children, to participate in community activities and to do his normal activities around the house such as cutting the grass, washing cars, and doing repairs. [*2]

With respect to his medical treatment, plaintiff testified that he continued seeing his chiropractor and his physical therapist for a full year following the accident. During the course of the year he was treated by Dr. Randazzo, the chiropractor, approximately eighty-five times and he was treated by Dr. Vaccarino, the physical therapist, more than eighty times. Plaintiff testified that during his course of treatment his knee improved, but his back and shoulder remained the same.

Plaintiff testified that in January 2005 he discontinued all of his medical treatments as they were no longer helping to alleviate his pain. Although surgery was recommended for his shoulder, he stated that he declined to have surgery because it would have required that he be out of work for eight to ten weeks and he feared this would result in foreclosure on his home. Plaintiff testified that at the present time he still has pain in his right shoulder and back as well as limited range of motion in both areas. He testified that he is still limited with regard to lifting, bending and picking up items.

Dr. Randazzo, a licensed chiropractor, testified that he first saw Mr. Jones on January 21, 2004, one week after the accident. Mr. Jones told Dr. Randazzo that as a result of the automobile accident he was suffering from pain in his back, right shoulder and right knee. Dr. Randazzo conducted a full orthopedic evaluation of Mr. Jones' cervical spine, mid-dorsal spine and lumbar region. He conducted several tests on the plaintiff, including upper extremity test, cervical compression test, shoulder depression test, Biederman's sign test, Soto-Hall test, Kemp's test, Jackson's maximum compression test, straight leg raising test, heel bone test, toe walk test, Milgram's test, Patrick's test, Ellis test, Valsalva's test, and a reflex test. Dr. Randazzo stated that all the tests were positive with respect to complaints of pain by the plaintiff. With respect to the leg lifting test, Dr. Randazzo testified that Mr. Jones had 60 degree range of motion on the right side indicating a nerve root irritation in the lower spine area and limited range of motion with respect to the lumbar spine. Dr. Randazzo also testified that plaintiff's range of motion for his back was 70 degrees out of a normal 90 degrees. Dr. Randazzo also testified that upon palpation he was able to feel spasms throughout the plaintiff's spine area.

The MRI reports, which were admitted into evidence on consent of both parties, indicated that there was a disk bulge at the L5-S1 level, that there was a possible tear of the ACL in the knee area and swelling around the medial meniscus and that there was a partial tear to the tendon in the shoulder with impingement. Dr. Randazzo testified that based upon the MRI reports as well as his treatments and physical examinations, his final diagnosis was posttraumatic disc bulge, nerve root impingement of the spine, impingement of the right shoulder and a partial superspinatus tendon tear of the rotator cuff. He stated that all of the injuries were permanent in nature and that, in his opinion, all of plaintiff's injuries were caused by the automobile accident.

Dr. Randazzo confirmed that plaintiff ended his chiropractic treatments in January, 2005 because his injuries had plateaued to the extent that Dr. Randazzo could no longer provide him with help for his symptoms.

Dr. Francis Lansone, a board certified orthopedic surgeon also testified on behalf of the plaintiff. Dr. Lansone examined Mr. Jones on May 30, 2006. At that time Mr. Jones told the physician that he was still experiencing pain in his neck, back and shoulder. Dr. Lansone testified that his examination indicated that plaintiff had pain in his right shoulder with limitations to his range of motion. The tests he conducted showed that plaintiff had only 100 out [*3]of a normal 150 degrees of forward flexion of the shoulder. In addition, he had 90 out of a normal 150 degrees of abduction and 45 out of a normal 80 degrees of internal rotation. His external rotation of the shoulder was 45 degrees out of a normal 90 degrees. Dr. Lansone stated that these limitations of range of motion were indicative of damage to the shoulder joint.

Dr. Lansone also reviewed the plaintiff's MRI films. He stated that the MRI of the shoulder showed a partial tearing or thinning of the rotator cuff on the superspinatus tendon also known as an impingement which he said was caused by the accident. Dr. Lansone testified that the rotator cuff in Mr. Jones' shoulder could be surgically repaired through arthroscopic surgery. He confirmed that the healing process for this type of surgery would be approximately twelve weeks. Dr. Lansone stated that without the surgery plaintiff's shoulder would not get any better than it was because the impingement prevents the shoulder from healing completely. Therefore, he testified that the shoulder injury is permanent in nature.

With respect to the plaintiff's lower back, Dr. Lansone's examination indicated a positive straight leg raising on the left side which was indicative of irritation to the sciatic nerve. With respect to the MRI of the lumbar spine, Dr. Lansone stated that the MRI of plaintiff's back showed a herniated disc at the l5-S1 level. He concluded that the herniated disc was caused by the accident in question. Dr. Lansone also testified that plaintiff's spinal injury is permanent and that as a result of his injuries, plaintiff suffered a permanent consequential limitation of the use of a body organ or member.

With respect to plaintiff's right knee, Dr. Lansone found nothing that was torn or related to the accident. His examination of the plaintiff's right knee showed pain on the inside of the knee with flexion and extension.

At the end of the plaintiff's case, defendant moved to dismiss plaintiff's cause of action for damages on the ground that plaintiff failed to prove, as a matter of law, that Plaintiff sustained a serious physical injury as defined by Insurance Law Section 5102.

Pursuant to Insurance Law Section 5102, commonly referred to as the "No-Fault Law," in order for a victim of an automobile accident to bring an action for "non-economic loss," i.e., pain and suffering, he must demonstrate "serious injury," defined by Insurance Law § 5102 (d) 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 non-permanent 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 not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." Plaintiff sought to establish through his testimony and the testimony of his expert witness that the injury to his back and right shoulder fell within either of three categories. He first alleged that he suffered a "significant limitation of use of a body function or system" based upon his limited range of motion in his back resulting from a herniated or bulging disk. Plaintiff also asserted that he has "permanent consequential limitation of use of a body organ or member" based upon the evidence that his shoulder injury is permanent and that without surgery he will have permanent limitations on the range of motion to his shoulder. [*4]

Plaintiff's counsel conceded that the testimony was insufficient to prove a serious physical injury with regard to plaintiff's knee. With respect to the knee, plaintiff did not produce objective or qualitative medical evidence regarding alleged range-of-motion limitations causally related to the accident. See Toulson v. Young Han Pae, 13 AD3d 317 (1st Dept. 2004); Blackmon v. Dinstuhl, 27 AD3d (1st Dept.2006). Therefore, any injury to the knee will not be submitted to the jury with regard to the determination of whether plaintiff sustained a serious physical injury as defined by the Insurance Law.

The Court of Appeals has stated that "the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries." Toure v Avis Rent-A-Car Sys. Inc., 98 NY2d 345 (2002), quoting Dufel v Green, 84 NY2d 795(1995).

In order to satisfy the statutory serious physical injury threshold, objective proof of a plaintiff's injuries are required. (Lopez v. Senatore, 65 NY2d 1017(1885). Subjective complaints alone are insufficient to establish a prima facie case of serious injury. Munoz v. Hillingsworth, 18 AD3d 278(1st Dept. 2005). To establish the existence of a serious physical injury, "it is incumbent upon the plaintiff to adduce competent and admissible medical evidence based upon objective medical findings and diagnostic tests which support the claim of serious injury." Anderson v. Persell, 272 AD2d 733(3d Dept. 2000).

The courts have held that when the issue of serious physical injury is raised on a motion for a directed verdict, "the court must not weigh the evidence but must determine that there is no rational process by which the jury could find for the nonmoving party upon the evidence presented." Conahan v. Sanford, 284 AD2d 749(3d Dept. 2001); Davies v. Contelof NY, 187 AD2d 898(3d Dept. 1992); Fenton v. Ives, 229 AD2d 704(3d Dept. 1996).

This court finds that with regard to plaintiff's shoulder and back injuries, the testimony of the plaintiff and plaintiff's expert witnesses, Drs. Lansone and Randazzo has raised a sufficient question of fact with regard to serious physical injury.

The medical testimony of plaintiff Terrence Jones, Dr. Lanzone and Dr. Randazzo was sufficient to constitute a sufficient basis for a jury to find that plaintiff sustained a significant as well as permanent and consequential limitation of his back and right shoulder which resulted from the accident in question. There was credible medical proof, based upon objective findings contained in the MRIs and tests of limitation of range of motion, that the impairment to the plaintiff's spine and right shoulder are sufficient to substantiate plaintiff's claim of serious physical injury. See Picott v. Lewis, 26 AD3d 319(2d Dept.2006).

Specifically, Dr. Lansone, who recently examined the plaintiff, testified with respect to the right shoulder that the MRI showed that plaintiff had an impingement caused by a thinning or partial tearing of the rotator cuff. As a result of this impingement, Dr. Lansone testified that plaintiff had only 100 out of a normal 150 degrees of forward flexion of the shoulder, that he had 90 out of 150 degrees of abduction, and that he had 45 out of 80 degrees of internal rotation. He testified that this condition of the shoulder is permanent. See Privitera v. Brown, 28 AD3d 733(2d. Dept. 2006).

With respect to plaintiff's back, Dr. Lansone testified that the MRI showed a bulging or herniated disc at the L5-S1 level which was caused by the accident in question. He stated that his physical examination based upon testing which included a positive [*5]

straight leg raise indicated that there was irritation of the sciatic nerve and that this condition was also permanent. See Iacovazzo v. Ahmad, 27 AD3d 421(2d Dept. 2006); Deleon v. J & J. Towing,32 AD3d 986(2d Dept. 2006).

In addition, plaintiff's testimony that he could not perform all of his usual and customary activities for 90 out of the first 180 days after the accident has been sufficiently substantiated by the expert's testimony that plaintiff sustained a medically determined injury to his back and right shoulder. See Garner v. Tong, 27 AD3d. 401(1st Dept. 2006).

Finally, this court finds that the plaintiff's limitations in daily activities were based upon objective medical evidence consisting of Dr. Lansone's interpretation of the MRI reports and his physical examination of the plaintiff.

Therefore, when viewing all the evidence in the light most favorable to the plaintiff, this court finds with respect to the injuries to the plaintiff's back and right shoulder, that the testimony of plaintiff's witnesses is sufficient, if found by the jury, to sustain a finding by the jury that as a result of the automobile accident in question, plaintiff has sustained (1) a significant limitation of use of a body function or system, (2) a permanent consequential limitation of use of a body organ or member and (3) a non-permanent medically determined injury that prevents performance of usual and customary daily activities for 90 of 180 days immediately subsequent to the injury.

Accordingly, defendant's motion for a directed verdict dismissing plaintiff's cause of action for damages is denied.

Date:March 20, 2007_____________________

Sheri S. Roman, J.S.C.

Gloria D'Amico

Clerk