Motion by the Lenharts for summary judgment dismissing the complaint of Thomas and Kelly as against them based upon said plaintiffs' failure to sustain a serious injury is granted.

In order to obtain summary judgment, the movant must make a prima facie showing that it is entitled to said relief, by tendering evidentiary proof in admissible form sufficient to eliminate any material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). The Lenharts have met their burden. They have submitted evidence, in admissible form, to establish prima facie that Thomas and Kelly did not sustain a serious injury (see Insurance Law §5102[a]; Gaddy v. Eyler 79 NY2d 995 [1992]).

Thomas and Kelly allege in their bill of particulars that they sustained a serious injury under the significant limitation category of serious injury as defined in §5102 of the Insurance Law. The injuries that Thomas alleges she sustained were cervical disc herniations and a cervical compression fracture. Kelly allegedly sustained "cervical spine sprain strain", "low back pain," "left hip trauma" and "left iliac bone pain."

Regarding Thomas, movants submit an affirmed report of their examining orthopedist, dated February 23, 2006, relating full ranges of motion of her cervical and lumbar spines and left shoulder by stating the ranges of motion in degrees and comparing [*2]these findings to the normal ranges of motion in degrees. There were no muscle spasms and straight leg raising was negative.

The affirmed report of defendants' neurologist, dated August 23, 2006, also relates full ranges of motion in Thomas' cervical and lumbar spines by setting forth the ranges of motion in degrees and comparing same to the normal ranges of motion in degrees. The neurologist also noted that there were no muscle spasms.

The affirmed radiologist's report setting forth the results of an MRI study of Thomas' cervical spine conducted on March 28, 2003 indicates herniation at the C3-C4 level which the radiologist characterizes as being of long-standing degenerative origin. There was also bulging at the C4-C5 and C5-C6 levels also attributable to long-standing degenerative origin. There was no evidence of fracture or dislocation. The radiologist finds no causal connection between these findings and the accident.

With respect to Kelly, defendants submit an unaffirmed report of his treating physician, Dr. Koyen, relating the findings of an examination conducted on March 11, 2003. The report relates normal ranges of motion of his cervical and lumbar spines, shoulders, hips, knees, elbows, wrists and ankles/feet. The only evidence of injury he found was "tenderness at iliac bone" and diagnosed Kelly merely with "left hip trauma." Since this report is of plaintiff's treating physician and is being offered by defendants, it is admissible notwithstanding that it is not affirmed (see Thomas v. Drayton, 305 AD2d 303 [1st Dept 2003]). Moreover, the same report is submitted by plaintiffs in their opposition (see Flores v. Stankiewicz, 35 AD3d 804 [2nd Dept 2006]). Only where the proponent for summary judgment is relying upon the findings of its own experts must those findings be in admissible form in order to make a prima facie showing of entitlement to summary judgment (see Marsh v. Wolfson, 186 AD2d 115 [2nd Dept 1992]).

The affirmed report of defendants' examining orthopedist, dated February 23, 2006, relates full ranges of motion of Kelly's cervical and lumbar spines and left hip by stating the ranges of motion in degrees and comparing these findings to the normal ranges of motion in degrees. There were no muscle spasms and straight leg raising was negative. The orthopedist diagnosed Kelly with resolved cervical and lumbar strains and left hip contusion.

The burden then shifted to plaintiffs to come forward with sufficient evidence to demonstrate that they did sustain a serious injury (see Gaddy v. Eyler, supra). Thomas and Kelly have not met their burden. [*3]

In opposition to the motion, plaintiffs submit, with respect to Thomas, a report of her treating physician, Dr. Boohoff, relating the findings of an examination conducted on March 6, 2003, a report of her treating physician, Dr. Koyen, relating the findings of an examination conducted on March 11, 2003, and a report of a radiologist, Dr. Solomon, relating the findings of an MRI study conducted on March 28, 2003. These reports are not affirmed and are, therefore, inadmissible (see Grasso v. Angerami, 79 NY2d 813 [1991]; Bravo v. Rehman, 28 AD3d 694 [2nd Dept 2006]). Dr. Koyen's unaffirmed report concerning Thomas, unlike his unaffirmed report regarding Kelly, was not submitted or relied upon by defendants and, therefore, is inadmissible.

Even were they admissible, they fail to raise a question of fact as to whether Thomas sustained a serious injury. Dr. Boohoff's report states that her ranges of motion were "moderately restricted" and "decreased" but fails to compare these findings to the normal ranges of motion in degrees (see Claude v. Clements, 301 AD2d 554 [2nd Dept 2003]). Although the report states that straight leg raising was positive at 30 and 40 degrees, Thomas, in her bill of particulars, does not allege that she sustained injury to her lumbar spine. Moreover, all three reports fail to state that Thomas' injuries are causally related to the accident (see Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [1985]; Betheil-Spitz v. Linares, 276 AD2d 732 [2nd Dept 2000]).

Since the Court may not consider these reports, Thomas has thus failed to submit medical proof that was contemporaneous with the accident showing any initial range of motion restrictions that she sustained in her spine (see Nemchyonok v. Ying, 2AD3d 421 [2nd Dept]; Ifrach v Neiman, 306 AD2d 380 [2nd Dept]; Pajda v Pedone, 303 AD2d 729 [2nd Dept]). Her examination by a neurologist on February 1, 2007, solely for the purpose of opposing the instant motion, was almost four years after March 3, 2003, the date the accident took place and is, therefore, in and of itself, insufficient to raise an issue of fact.

With respect to Kelly, plaintiffs submit an unaffirmed report of Dr. Boohoff relating the findings of an examination conducted on March 6, 2003. Therefore, this report is inadmissible. Plaintiffs also submit, as heretofore mentioned, the report of Dr. Koyen, relating the findings of the examination conducted on March 11, 2003, which has also been submitted and relied upon by defendants, and which shows that Kelly had no restrictions and only a sore left hip. Additionally, plaintiffs submit an affirmed report of Kelly's neurologist, Dr. Hausknecht, dated February 1, 2007, in which he finds no deficits or restrictions and that his physical examination was "essentially within normal limits." Therefore, plaintiffs' [*4]submissions not only fail to rebut defendants' prima facie showing that Kelly did not sustain a serious injury, but they actually support defendants' prima facie showing.

Not only does plaintiffs' opposition fail to demonstrate by proof in admissible form that plaintiffs suffered any limitations in ranges of motion of their cervical and lumbar spines, but it fails to proffer any evidence demonstrating any limitations of a qualitative nature (see Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2002]). None of the reports submitted articulate what qualitative impact the alleged injuries had on plaintiffs' lives or in what way plaintiffs suffered restrictions as compared to the normal function of plaintiffs' body systems or functions (see id.). Thomas, in her deposition stated that she did not lose any time from work and that the only thing she cannot do as a result of her injuries which she had been able to do before is sit for long periods of time. Moreover, there is nothing that she was able to do before that she now does with greater difficulty. Kelly states in his deposition that he merely lost two weeks of school and his back hurts "off and on."

Finally, plaintiffs argue that even if they did not sustain a serious injury as defined in Insurance Law §5102, they are not "covered" persons within the meaning of that section and, therefore, the serious injury threshold requirements thereof do not apply to them. Thomas contends that her insurer had disclaimed coverage and did not pay her medical bills under no-fault and, therefore, she did not have the financial security required under the Insurance Law. Consequently, Thomas argues, she should not be held to the serious injury threshold standard of the Insurance Law. Plaintiffs' argument is without merit.

Annexed to plaintiffs' opposition papers is a default judgment, issued by the Federal District Court for the Western District of North Carolina on May 20, 2005, in a declaratory judgment action brought by Thomas' insurer against plaintiffs declaring the insurance policy void due to fraud committed by Thomas, as well as a copy of a consent order, signed by Thomas, in which she admits that she committed insurance fraud by misrepresenting to her insurer that she was a resident of North Carolina, when she was, in fact, a resident of New York, in order to procure an automobile policy, presumably at the lower premium rates afforded to residents of that state.

Plaintiffs' counsel actually argues that since Thomas committed fraud and, thus, could not recover from her insurer, neither she nor her child, Kelly, was a covered person subject to the constraints of the no-fault law and, therefore, cannot be bound [*5]by its conditions but should have an unfettered right to sue for economic and non-economic losses without regard to any monetary threshold.

Even had Thomas and her child Kelly been denied no-fault benefits, such event does not exempt them from the strictures of the serious injury threshold requirement of the Insurance Law. "A covered person' is not defined solely by his or her ability to collect no-fault benefits" (Canfield v. Beach, 305 AD2d 440, 441 [2nd Dept 2003]). Thomas was a "covered person" as defined in the Insurance Law by virtue of the fact that at the time of the accident she was subject to the requirements of the no-fault law (id.). That she was denied no-fault benefits because of her fraudulent misrepresentation was her own doing.

There is no mechanism in the Insurance Law that allows a person to opt out of New York's no-fault scheme by simply failing to procure proper insurance or by committing a fraudulent act triggering an insurer to disclaim coverage. Bearing in mind that the very purpose of the Insurance Law is to provide innocent victims of motor vehicle accidents recourse to financially responsible defendants, it would be contrary to the intent of the Legislature, and clearly irrational, to reward uninsured motorists for their unlawful behavior by allowing them to recover damages for non-economic loss without regard to the threshold requirements while at the same time limiting the right of properly insured motorists to sue only if the threshold requirements are met. Plaintiff's contention that she should, by virtue of her fraud, be placed in a superior position to that of an insured motorist is untenable.



On this record, the affirmation in opposition is insufficient to raise a triable issue of fact as to whether Thomas and Kelly suffered a serious injury. Accordingly, the motion for summary judgment is granted and the action with respect to plaintiffs Thomas and Kelly is dismissed.

Cross-motion by the City for an order "converting" its cross-claims asserted in its answer against defendants Lenhart into a counterclaim is granted. The cross-claims asserted by the City against Thomas and Kelly shall be deemed a third-party complaint and the answer interposed by defendants Lenhart with cross-claims against the City shall be deemed an answer to the third-party complaint.

Accordingly, the motion and cross-motion are granted and plaintiffs' complaint is dismissed as against defendants Lenhart. [*6]

Dated: March 29, 2007__________________________

KEVIN J. KERRIGAN, J.S.C