Upon the foregoing papers it is ordered that the motion and cross motion are granted.

Plaintiff in this negligence action seeks damages for personal injuries sustained in a motor vehicle accident on February 23, 2004 at the intersection of Queens Boulevard and 71st Road, in Queens County. The complaint alleges that a vehicle operated by Pallis collided into a vehicle operated by Bacon. Plaintiff was a passenger in the Bacon vehicle. In the verified bill of particulars, plaintiff alleges the following injuries: right paracentral L4-5 herniated disc and disc bulges at L2-3 and L5-S1. Defendants contend that plaintiff did not sustain a serious injury causally-related to the subject accident. Plaintiff opposes the motion. [*2]

It is well settled that the proponent of a motion for summary judgment, where the issue is whether a plaintiff has sustained a serious injury as defined by Insurance Law § 5102[d], has the initial burden of establishing, by competent evidence, that a plaintiff did not sustain a serious injury causally-related to the subject accident (Franchini v Palmieri, 1 NY3d 536 [2003]). Once a defendant meets this initial threshold, the burden shifts to plaintiff to offer proof, in admissible form, which creates a material issue of fact requiring a trial (Id.). Defendants met their initial burden with the affirmed reports of Drs. Toriello and Feuer, coupled with plaintiff's own medical records.

After examining plaintiff on August 9, 2006, Dr. Edward Toriello, an orthopedist, affirms that the ranges of motion in plaintiff's cervical and lumbar spine are normal, and that all objective tests were negative or within normal limits. Based thereon, Dr. Toriello concludes that plaintiff had "resolved cervical hyperextension injury and resolved lower back strain."

Similarly, after examining plaintiff on August 18, 2006, neurologist Dr. Daniel Feuer, affirms that the neurological examination was normal, that there were no clinical deficits found which would correlate with radiographic findings, and that there is no neurological permanency causally-related to the subject accident.

Defendants also point to plaintiff's own medical records to establish the absence of serious injury. The diagnostic impression upon initial examination of plaintiff by Dr. Jingling Tang from New York Orthopedic & Rehabilitation was cervical spine sprain, lumbar spine sprain and mixed disorder reaction to stress. Dr. Tang also referred plaintiff to start a physical therapy program three times per week. The records further indicate that plaintiff received physical therapy, including electrical stimulation, therapeutic exercises, hot/cold packs and acupuncture from March 8, 2004 to September 2, 2004. The follow-up reports dated March 23, 2004, April 8, 2004 and June 25, 2004. On March 23, 2004, Dr. Peter Chiu noted, upon examination, that a review of plaintiff's x-ray showed rotary scoliosis to the lower thoracic and lumbar spine as well as mild intervertebral disc space narrowing to the L5-S1 level, with an impression of cervical and lumbar spine sprain/strain, lumbosacral radicular symptoms and lumbar derangement. Dr. Chiu also stated that plaintiff was able to perform the duties of her occupation as a home health attendant.

The follow-up evaluation by Dr. Judith Kahn on May 4, 2004, revealed the impression of cervical spine sprain/strain, thoracic spine sprain/strain, lumbosacral spine sprain/strain, and lumbosacral radiculopathy and herniated disc. Similarly, the follow-up examination by Dr. Clyde Lucky on June 25, 2004, revealed cervical sprain/strain, lumbar disc herniation and lumbar sprain/strain. Dr. Lucky also stated that plaintiff was able to perform the duties of her occupation. The record also indicates that plaintiff continued to work as a home health aide during the approximate six-month period that she received physical therapy.

A magnetic resonance imaging (MRI) film taken of plaintiff's lumbar spine on April 12, 2004, revealed an impression if disc bulges at L2-3, L5-S1 with right paracentral L4-5 disc herniation with borderline stenosis; and the x-ray report of the cervical spine revealed an impression of reversal of the normal cervical lordosis possibly due to spasm. Also, EMG/NCV nerve study [*3]testing, performed by Dr. Robert Hard, on May 10, 2004, revealed no evidence of lumbar radiculopathy.

Plaintiff's submissions in response are insufficient to raise a triable issue of fact. Plaintiff submitted, inter alia, a report from a nontreating physician, Dr. Aric Hausknecht, dated December 7, 2006, which found all normal thoracic/lumbar spine ranges of motion except for forward flexion and extension. These two categories are stated to be 20 and 5 degrees less than normal, respectively. Such limitations, however, qualify only as "minor, mild or slight" and sprain/strain type injuries with minimal limitation are not "significant limitations of body function or system" as a matter of law (see Godden v Carmen, 169 AD2d 12 [1991]; Booker v Miller, 250 AD2d 783 [1998]; Partlow v Meehan, 155 AD2d 647 [1989]). Dr. Hausknecht also failed to causally-relate these two limitations to the subject accident as opposed to plaintiff's age, natural degenerative processes or plaintiff's occupation.

The report of Dr. Richard Heiden stating his interpretation and findings as noted in the April 12, 2004 MRI also does not indicate that the conditions are trauma-related. Interestingly, Dr. Heiden states in the April 12, 2004 report that the L4-5 disc level reveals dehydration and spinal stenosis which are generally degenerative conditions unrelated to trauma (see e.g. Birnbaum v All-State Vehicle, Inc., 139 AD2d 553 [1988]). Indeed, defendants' expert radiologist Dr. Sondra J. Pfeffer notes that the lumbar spine MRI taken on April 12, 2004 reveals findings reflective of long-standing degenerative disc disease at L4-5.

Moreover, there is no explanation in the record for the 18-month gap in treatment (see Black v Regalato, 36 AD3d 347 [2007]; Baez v Rahamatali, 24 AD3d 256 [2005]; Grant v Fofana, 10 AD3d 446 [2004]), and plaintiff's subjective complaints of pain, standing alone, are insufficient to establish serious injury (Scheer v Koubek, 70 NY2d 678 [1987]; Pierre v Newton, 279 AD2d 621 [2001]; Konco v E.T.C. Leasing Corp., 160 AD2d 680 [1990]).

Accordingly, the motion and cross motion to dismiss the complaint on the ground that plaintiff did not sustain a serious injury in the subject accident, are granted.

Dated: March 29, 2007

J.S.C.