The defendant moves pursuant to CPLR §3212 for summary judgement dismissing the case on the grounds that the plaintiff Terrence Gibbs has not sustained a serious injury required by law. The plaintiff opposes the motion and papers were submitted by all parties. After reviewing the arguments of all parties, this court now makes the following determination.

This lawsuit commenced following an automobile accident which took place on December 16, 2001 near the intersection of Boyland Street and Lott Street in Kings County. A summons and complaint was filed almost three years later on December 9, 2004 wherein plaintiff alleged that he sustained various injuries including a serious injury as defined by Insurance Law §5102.

In automobile accident cases where the plaintiff seeks to recover for pain and suffering or other non-economic' loss plaintiff must allege and ultimately prove the existence of a serious injury (Oberly v. Bangs Ambulance Inc., 96 NY2d 295, 727 NYS2d 378, 751 NE2d 457 [2001]). Serious injury has been defined by the legislature to include among other categories an injury resulting in a permanent consequential limitation of the use of a body function or system (Insurance Law §5102(d)(vii)) or an injury resulting in a significant limitation of use of a body function or system (Insurance Law §5102(d)(viii)).

It is well settled that a defendant has the initial burden of demonstrating that the plaintiff did not sustain a serious injury (Kim v. Pokruss, 290 AD2d 537, 736 NYS2d 633 [2nd Dept., 2002]). It is then the plaintiff's burden to come forward with some evidence raising a triable issue of fact (Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176 [1992]). Thus, if the defendant has submitted evidence demonstrating the lack of a serious injury the plaintiff must submit qualitative objective medical findings which identify the tests used and give an opinion as to the extent and significance of the limitation (Walcott v. Hsuehli, 283 AD2d 485, 725 NYS2d 207 [2d Dept., 2001]). As with all medical reports submitted under the No Fault statute they must either be sworn or incorporated within an accompanying affidavit from the examining [*2]doctor (Grossman v. Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept., 2000]).

In this case the defendant submitted objective evidence that plaintiff did not suffer any serious injuries. On March 2, 2002 approximately three months after the accident plaintiff was seen by a doctor ^[FN1] at the request of defendant's No-Fault insurance carrier. An orthopedic examination of plaintiff's cervical spine and lumbar spine were conducted as well as an examination of plaintiff's left knee. The doctor noted that no other medical reports were submitted for his review. Following the examination the doctor concluded that "the claimant has no disability at this time. There will be no permanence as a result of this accident. He is capable of working and performing all of his normal activities of daily living without any limitations." The doctor further concluded that "no further orthopedic intervention is indicated, and as such any treatment would be considered excessive." Likewise, Dr. Edward Toriello conducted an examination of the plaintiff on July 11, 2006 a little over four and a half years after the accident. Specifically, Dr. Toriello examined the cervical spine, the right and left shoulder, the right and left elbow, the right and left wrist and hand, the lumbosacral spine and the right and left knee. Moreover, Dr. Toriello reviewed the medical reports of seven different doctors including the doctor's report of March 2, 2002 as well as an MRI report of the cervical spine concerning treatment of plaintiff all conducted between December 27, 2001 and August 15, 2002. Dr. Toriello concluded that there was "no evidence of disability from any Orthopaedic injury sustained in the accident" and any injuries to the back, shoulders and knees were all resolved. Thus, those reports contain the results of numerous objective tests performed on plaintiff with objective medical findings that plaintiff did not suffer any physical injuries (Figueroa v. Westbury Trans, Inc., 304 AD2d 614, 757 NYS2d 756 [2d Dept., 2003]).

In opposition the plaintiff submitted a medical report concerning an examination conducted eleven days after the accident by Dr. William Jen Tsai. The plaintiff also submitted reports conducted following MRI's taken on January 7, 2002 and March 1, 2002. Based upon the report and conclusions reached by Dr. Tsai the plaintiff began a course of physical therapy which lasted several months. The plaintiff could not conclusively state why he stopped receiving treatment but intimated it was because his insurance would not longer be paying for treatment or "something like that" (see, Deposition of Terrence Gibbs, page 47). The plaintiff did submit one additional report concerning a medical examination conducted September 26, 2006. That examination was conducted by the same doctor who had conducted the examination on March 2, 2002 on behalf of plaintiff's No-Fault insurance carrier. The doctor does not reference his own prior report and only mentions the consultation conducted by Dr. Tsai on December 27, 2001, eleven days after the accident. The report of the doctor, conducted September 26, 2006 forms the basis of plaintiff's opposition since it is a recent medical examination highlighting plaintiff's continual injuries. However, such report is entirely insufficient to rase any issue of fact. A careful examination of the two reports, conducted by the same doctor within a span of four and one half years reveals inconsistencies which make reliance on the reports impossible. For example, in 2002 the doctor noted that the normal range of motion for the flexion and extension of the cervical spine is 45 degrees which were the ranges of motion of the plaintiff. Indeed, those [*3]ranges are noted as reflecting the normal ranges for those tests (see, Frontera: Essentials of Physical Medicine and Rehabilitation, 1st Edition 2002). However, in 2006 the same doctor indicated that the plaintiff yielded a limited range of motion of 20 degrees concerning the flexion of the cervical spine where the normal is 60 degrees and a limited range of motion of extension of 20 degrees where the normal is 50 degrees. While the plaintiff attempts to explain the discrepancy, which will be addressed shortly, there can be no explanation for the manipulation of the normal ranges of motion for the bending and stretching of the human body. Indeed, the insistence that normal ranges of motion be included within reports of doctors in serious injury cases (see, Wells v. Secka, 11 AD3d 240, 783 NYS2d 24 [1st Dept., 2004], Aronov v. Leybovich, 3 AD3d 511, 770 NYS2d 741 [2d Dept., 2004]) is precisely because otherwise the court is left to speculate as to the meaning of the figures presented (Manceri v. Bowe, 19 AD3d 462, 798 NYS2d 441 [2d Dept., 2005]). Thus, accurate "comparative quantification" is vital to determine whether the injuries are indeed "serious" (Yashayev v. Rodriguez, 28 AD3d 651, 812 NYS2d 367 [2d Dept., 2006]) and adjusting the "normal" range of motion merely seeks to erode the court's function. To be sure, there may be differing medical opinions as to the precise definition of "normal" and there might exist a medical consensus that the "normal" range of motion is actually a fluid range which cannot be pigeonholed to one specific degree of limitation, however, if that were true the doctor would have been required to mention it within his report.

This brings the court to the next issue, namely the fact the inconsistencies between the same doctor raise issues of fact requiring a denial of summary judgement. The plaintiff concedes that the doctor examined plaintiff on March 2, 2002 and found no disability and that upon an examination on September 26, 2006 the same doctor did find disability. The plaintiff argues that "it is logical that while plaintiff was still treating in 2002, that he would be in better condition than then [sic] he would be in five years following the accident. Once a plaintiff stops treatment and returns to their normal life again, they are likely to experience more pain and limitations then when they are treating and taking easy [sic] immediately following the accident" (plaintiff's affirmation in opposition, ¶32).While that statement might be true, as noted above, it is a medical determination which could only be made by a medical professional. If the doctor believed that the plaintiff's condition grew worse over the years and his conclusion in 2002 that "the claimant has no disability at this time. There will be no permanence as a result of this accident. He is capable of working and performing all of his normal activities of daily living without any limitations" was erroneous then he was obligated to explain the change in prognosis. However, on September 26, 2006 the doctor does not reference his four year old examination of plaintiff or the conclusions he reached then. He merely references one prior examination, conducted by Dr. Jen Tsai on December 27, 2001 and notes that based upon that examination the plaintiff's prognosis was "guarded" and he further references MRI scans conducted January 7, 2002 and March 1, 2002. The doctor nevertheless conducted examinations of the cervical and lumbar spine and as noted above concluded that plaintiff suffered limited ranges of motion and noted that he "continued to experience residual effects from the traumatic accident". Moreover, entirely contrary to the report four years earlier he concludes that regarding the cervical spine "plaintiff will continue to suffer from limitation of range of motion and spasm of the paraspinal muscles. Physical therapy treatment is necessary to ensure maximum health. As to the lumbar spine, patient will continue to experience limited range of motion at forward bending and [*4]limitation of the right lower extremity. Intensive physical therapy treatment is essential". The doctor ultimately concludes that "it is my professional opinion that Terrence Gibbs has suffered a permanent, significant and severe injury to the cervical spine and lumbar spine as a result of the motor vehicle accident of December 16, 2001". It is obvious that this conclusion stands in stark contrast to the conclusion reached less than three months after the accident by the same doctor that "there will be no permanency as a result of the accident" and "there is no need for additional physical therapy, diagnostic testing, medical supplies, household help, special transportation, acupuncture treatment, or massage therapy". Equally troubling is the complete absence of any reference to the earlier examination and some medical attempt to explain it away or at least provide some medical reason why there exists a question of fact. The complete failure to address the earlier report at all demonstrates the current report was merely tailored to satisfy the statutory requirements and is entirely insufficient to create any question of fact (see, Simms v. APA Truck Leasing Corp., 14 AD3d 322, 788 NYS2d 63 [1st Dept., 2005]).Of course, both reports of the doctor cannot be utilized by the court in any manner whatsoever, given the inconsistencies and lack of explanation, thus, the plaintiff has failed to adequately oppose the motion for summary judgement. It is generally true that a defendant must present some evidence of lack of serious injury or the motion for summary judgement must be denied without reference to plaintiff's papers (Russo v. Ross, 32 AD3d 386, 821 NYS2d 101 [2d Dept., 2006]). In this case the defendant, as noted, has submitted the report of Dr. Edward Toriello concerning recent medical examinations conducted which all indicate that the plaintiff did not suffer any serious injury (Figueroa v. Westbury Trans, Inc., 304 AD2d 614, 757 NYS2d 756 [2d Dept., 2003]).

Therefore, the plaintiff has failed to raise a triable issue of fact and consequently the motion for summary judgement seeking to dismiss the case is granted.

So ordered.

ENTER:

Dated: February 15, 2007_________________________________

Brooklyn NYHon. Leon Ruchelsman

JSC