Defendant moves for an Order granting summary judgment dismissing the Complaint, on the grounds that plaintiff Paulette D. Clark-Jones has not sustained a serious injury as defined by Insurance Law § 5102(d), and for such other and further relief as the Court deems just and proper.

Plaintiffs cross-move for an Order granting summary judgment in favor of the plaintiffs and finding that, as a matter of law, plaintiff Paulette D. Clark-Jones sustained a serious injury as defined by Insurance Law § 5102(d), further setting the matter down for an immediate trial on the issue of damages, and for such other and further relief as this Court deems just and proper.Plaintiffs' Bill of Particulars alleges that the plaintiff Paulette Clark-Jones suffered the following personal injuries:

Disc bulge at C4-C5

Disc bulges at C5-C6 and C6-C7

Disc space narrowing at C4-C5 through T9-T10

Loss of intervertebral disc space of C3-C4

C5-C6 cervical radiculopathy

Loss of cervical lordosis

Reversal of the cervical lordosis with retrolisthesis of C5 on C6

Narrowed invertebral discs at level C3-C4

Narrowing of the bilateral nueral foramina at C3-C4

Multi-level disc desiccation within the cervical and thoracic spine

Left paracentral disc protrusion at T13-L1 with segmental stenosis

T1 and T2 hyperintense lesions within the L1 vertebral body

Hemangioma within the L3 vetebral body

T12-L1 disc bulge

Curvature of the thoracic spine

L5-S1 posterior disc herniation

L2-L3, L3-L4, and L4-L5 disc bulges [*2]

L5-S1 disc hydration loss

Narrowed invertebral disc at L4 and L5

L4-L5 lumbar radiculopathy

On July 20, 2006 plaintiff underwent a neurological examination by Dr. Michael J. Carciente, as requested by the defendants. Dr. Carciente reported that plaintiff's medical status was normal and that a cranial nerve examination revealed no abnormalities. Dr. Carciente stated that although plaintiff expressed subjective difficulty when asked to perform a leg lift, he noted that plaintiff was able to painlessly perform such a lift earlier when she was more distracted.

Dr. Carciente concluded that despite plaintiff's subjective complaints of pain, there were no objective findings of injury. According to Dr. Carciente, plaintiff had no disability and could work and perform all daily living activities. She did not require neurological care.

On July 20, 2006, plaintiff was seen by Dr. Kenneth Falvo for an orthopedic medical examination as requested by the defendants. Dr. Falvo noted that plaintiff walked normally, without assistance. She was observed to stand up from a seated position with the assistance of her husband. Range of motion tests of cervical spine, lumbar spine, and both shoulders appeared normal. Dr. Falvo did not observe paravertabral spasms of shoulder atrophy. Reflexes and sensitivity were also noted to be good and normal. He noted that plaintiff's leg reflexes were normal, as were the results of sensory tests in the lower extremities. Accordingly, Dr. Falvo concluded that plaintiff's soft-tissue injuries had been resolved.

Defendants claim that it was established at plaintiff's deposition that plaintiff only missed one day of work as a result of the accident. Defendants point out that even though plaintiff alleges she was out of work in the summer of 2005, six months after the accident, the cause of the absence, as testified to at the deposition, was an injury which occurred when plaintiff reached up into an oven to pull out a tray of food. Her back went out and she then fell back and struck a mixing bowl. Defendant claims that there is no evidence whatsoever that the May 9, 2005 incident at work was related in any way to the incident forming the basis of the within action.

Plaintiff submitted affidavits of Dr. Jeffrey S. Kaplan, who first saw plaintiff on October 2, 2006, two (2) years after the accident. Dr. Kaplan found disc herniation and bulging discs. His report of October 2, 2006 shows subjective post traumatic cervical pain with complaints of numbness in the left lower extremities. No range of motion tests are mentioned.

Dr. Frank LaRosa, a chiropractor, in his unsworn report of March 7, 2006, found an ongoing cervical disc syndrome and range lumbosacral disc herniation. No motion tests are mentioned.

David Burgos, P.T. submitted an affidavit sworn to February 12, 2007 stating that he treated plaintiff on five occasions over a two month period at the end of 2006 and the beginning of 2007, with her most recent treatment being on February 8, 2007.

By submitting a copy of the plaintiffs' Bill of Particulars and the affirmed medical

report of their examining orthopedic surgeon and their neurologist, the defendants have made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Toure v Avis Rent A Car Sys., 98NY2d 345; Gaddy v Eyler, 79 NY2d 955).

Plaintiff failed to raise a triable issue of fact in this regard. The plaintiff's reliance on the report of Dr. Jeffrey S. Kaplan and affidavit of Dr. Frank LaRosa with annexed reports is [*3]misplaced. The plaintiff's prior medical records, at best, merely recorded the plaintiff's subjective complaints of pain, and such complaints are insufficient, on their own, to raise a triable issue of fact as to whether she sustained a serious injury (see, Kinchler v. Cruz, 22 AD3d 808; Cennamo v. Themistokleous, 22 AD3d 700, 701; Nelson v. Amicizia, 21 AD3d 1015, 1016). The annexed reports of Dr. Jeffrey S. Kaplan, the plaintiff's examining orthopedic surgeon, were insufficient to raise a triable issue of fact. The plaintiff failed to provide any medical proof that was contemporaneous with the subject accident which showed range of motion limitations (see, Suk Ching Yeung v. Rojas, 18 AD3d 863, 864; Nemchyonok v. Peng Liu Ying, 2 AD3d 421; Ifrach v. Neiman, 306 AD2d 380). The magnetic resonance imaging report of the plaintiff''s cervical spine, which stated that the plaintiff suffered disc injuries,does not raise a triable issue of fact as to whether the plaintiff sustained a serious injury.

Additionally, the plaintiff failed to raise a triable issue of fact as to whether her alleged injuries prevented her from performing substantially all of her usual activities for at least 90 of the first 180 days following the subject accident (see, Davis v. New York City Tr. Auth., 294 AD2d 531; Sainte-Aimee v. Ho, 274 AD2d 569, 570; Arshad v. Gomer, 268 AD2d 450). Accordingly the defendants were entitled to summary judgment dismissing the complaint.

In light of this determination, the plaintiff's cross motion for summary judgment on the issue of serious injury is denied as academic.

This constitutes the Decision, Opinion, and Order of the Court.

Dated: March 29, 2007

______________________________

IRA B. HARKAVY

J.S.C.