The defendants Calliope Mihalios and Demetrios Malefakis have filed the instant motion pursuant to Rule 3212 of the Civil Practice Law and Rules for an order granting summary judgment and dismissing the plaintiffs complaint on the ground that neither the father Michael C. Sung or the infant plaintiff Jessica Sung have suffered a "serious injury" as that term is defined in Section 5102 of the New York State Insurance Law. The plaintiffs have responded in opposition to the instant motion. For the reasons set forth below the defendants' motion is denied.

The plaintiffs commenced the instant action by filing a summons and complaint with the Bronx County Clerk's Office on March 25, 2005. Issue was joined by the defendants with the service of their Verified Answer and combined discovery demands on May 16, 2005. Plaintiffs served a Verified Bill of Particulars on or about May 20, 2005. Plaintiff Michael Sung was deposed on February 7, 2006. [*2]

The instant action stems from an automobile accident which occurred on March 5, 2005 at about 9:35 A.M. The plaintiff Michael Sung was driving his 1996 Nissan along the Whitestone Expressway Service Road in the far right lane when the defendant Demetrios Malefakis made a sudden right turn into the plaintiffs lane of traffic, cutting off the plaintiff's vehicle. The defendant Malefakis was driving his co-defendant Calliope Mihalios' 1994 Ford. Defendant Malefakis was attempting to enter the McDonald's parking lot when he made a sudden ninety degree turn to the right crashing his vehicle into the plaintiff's car. The plaintiff sustained damage to his front bumper and hood on the driver's side of the vehicle. The police were called to the scene; however, the plaintiff declined the offer of an ambulance. Plaintiff Michael Sung sought treatment with Comfort Zone Chiropractic three days later on March 8, 2005. The infant plaintiff began treatment at the same facility on March 18, 2005.

In support of their motion for summary judgment the defendants have submitted, inter alia, the affirmed medical report of orthopedist Dr. Richard Weinstein who examined both plaintiffs on April 19, 2006 as well as the plaintiffs medical records from Comfort Zone Chiropractic. In opposition to the motion the plaintiffs submit the affidavit of their treating physician Dr. Vincent Jong, as well as their own affidavits and an affirmed MRI report of Michael Sung's lumbosacral spine.

Discussion

"Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" or where the issue is arguable. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231, 413 NYS2d 141, 145 (1978). Therefore, to obtain an order of summary judgment, the moving party must establish his cause of action or defense sufficiently to warrant the court granting judgment in his favor as a matter of law. The function of summary judgment is issue finding, not issue determination. The court must scrutinize the papers on the motion carefully in the light most favorable to the party opposing summary judgment and should draw all reasonable inferences in favor of the non-moving party. Sosnoff v. Jason D. Carter, et al., 165 AD2d 486, 492, 568 NYS2d 43, 47 (1st Dept. 1991); Assaf, et al. v. Ropog Cab Corp., et al., 153 AD2d 520, 521, 544 NYS2d 834, 835 (1st Dept. 1989).

In order to maintain an action for personal injury pursuant to the "no-fault" provisions of the Insurance Law, the plaintiff must establish that he or she sustained "serious injury" as that term is defined in Insurance Law § 5102(d)^[FN1]. On a motion for summary judgment where the issue is whether the plaintiff suffered "serious injury" the defendant bears the initial burden of presenting evidence, in competent form, to establish that the plaintiff has no cause of action as a matter of law. The plaintiff does not have to present proof that he or she sustained a serious [*3]injury unless the defendant meets its initial burden. Cassagnol v. Williamsburg Plaza Taxi Inc., 234 AD2d 208, 651 NYS2d 518 ( 1st Dept. 1996). However, where the defendant's moving papers are sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts to the plaintiff to come forward with prima facie evidence in admissible form to establish that he or she sustained a serious injury pursuant to Insurance Law § 5102(d). Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990 (1992).

In support of a claim that plaintiff has not sustained a serious injury, the defendant may rely either upon the sworn statements of the defendants' examining physicians or the unsworn reports of plaintiff's examining physician. See, Pagano v. Kingsbury, 182 AD2d 268, 587 NYS2d 692 (2nd Dept 1992). Once the defendant has established that the plaintiff does not make out a claim of serious injury, the plaintiff must then respond with proof in admissible form to rebut the defendant's claim. Proof in admissible form includes a medical affirmation or affidavit which is based on the physician's personal examination and observations of the plaintiff. O'Sullivan v. Atrium Bus Company, 246 AD2d 418, 668 NYS2d 167 (1st Dept. 1998). Unsworn medical reports of the plaintiff's examining doctor or chiropractor are insufficient to defeat a motion for summary judgment. Grasso v. Angerami, 79 NY2d 813, 580 NYS2d 178 (1991).

The affirmed medical reports of Dr. Richard Weinstein is sufficient to satisfy the defendants' burden. Dr. Weinstein conducted an "independent medical examination" of plaintiff Michael Sung on April 19, 2006. Dr. Weinstein found normal, full range of motion, on all planes, in the plaintiff's cervical spine as well as his thoracolumbar spine. Dr. Weinstein also found full, normal range of motion in the plaintiff's legs as well as in his right an left shoulder. Dr. Weinstein's final impressions were as follows:

IMPRESSION:

Cervical sprain, the findings of tenderness are common and can be seen in normal individuals.

Lumbar sprain.

Right shoulder with mild impingement.

There is no need for further orthopedic treatment as it is not medically necessary or reasonable. There is no need for physical therapy.

The claimant currently has no objective disability and may work full-duty without restrictions.

IMPRESSION:

Normal right knee exam.

There is no need for further orthopedic treatment as it is not medically necessary or reasonable. There is no need for physical therapy.

The claimant currently has no objective evidence of an orthopedic disability and may continue to attend school full time and perform her activities of daily living without orthopedic restrictions.

In response to these "independent medical reports" the plaintiffs submit the affidavit of their treating chiropractor Dr. Jong. Dr. Jong details in each affidavit, one for each plaintiff, the treatment history of the plaintiff as well as the various physical examinations which he conducted of them. Dr. Jong's most recent examination of plaintiff Michael Sung occurred on August 19, 2006, at which time he found that the plaintiff still had restricted range of motion in his cervical and lumbar spine.

The following results were noted with respect to plaintiff Michael Sung's cervical spine examination:

Restrictions in all planes of cervical range of motion with server pain noted throughout. Cervical flexion normal range of motion is 60 degrees, today's result: 50 degrees, pain with movement and at end point; Cervical extension normal range of motion is 50 degrees, today's result: 40 degrees, pain with movement and at end point; Cervical left lateral flexion normal range of motion is 40 degrees, today's result: 30 degrees, pain with movement and at end point; Cervical right lateral flexion normal range of motion is 40 degrees, today's result: 30 degrees, pain with movement and at end point; Cervical left rotation normal range of motion is 80 degrees, today's result: 60 degrees, pain with movement and at end point; Cervical right rotation normal range of motion is 80 degrees, today's result: 65 degrees, pain with movement and at end point.

Restriction was present with pain for thoraco-lumbar spine motion. Lumbar flexion normal range of motion is 90 degrees, today's result: 60 degrees, pain with movement and at end point; Lumbar extension normal range of motion is 30 degrees, today's result: 20 degrees, pain with movement and at end point; Lumbar left lateral flexion normal range of motion is 25, today's result: 20 degrees, pain with movement and at end point; Lumbar right lateral flexion normal range of motion is 25, today's result: 20 degrees, pain with movement and at end point; Lumbar right rotation normal range of motion is 30, today's result: 20 degrees, pain with movement and at end point. Lumbar left rotation normal range of motion is 30, today's result: 20 degrees, pain with movement and at end point. Lumbar left rotation normal range of motion is 30, today's result 20 degrees, pain with movement and at end point.

Dr. Jong also wrote a detailed affidavit concerning the infant plaintiff Jessica Sung. Dr. Jong's most recent examination of Jessica Sung was on August 19, 2006. At that time he made the following findings regarding the range of motion of her cervical spine:

Restrictions in all planes of cervical range of motion with severe pain noted throughout. Cervical flexion normal range of motion is 60 degrees, today's result: 50 degrees, pain with movement and at end point; Cervical extension normal range of motion is 50 degrees, today's result: 40 degrees, pain with movement and at end point; Cervical left lateral flexion normal range of motion is 40 degrees, today's result: 30 degrees, pain with movement and at end point; Cervical right lateral flexion normal range of motion is 40 degrees, today's result: 30 degrees, pain with movement and at end point; Cervical left rotation normal range of motion is 80 degrees, today's result: 70 degrees, pain with movement and at end point; Cervical right rotation normal range of motion is 80 degrees, today's result: 70 degrees, pain with movement and at end point.

Restriction was present with pain for thoraco-lumbar spine motion. Lumbar flexion normal range of motion is 90 degrees, today's result: 80 degrees, pain with movement and at end point; Lumbar extension normal range of motion is 30 degrees, today's result 20 degrees, pain with movement and at end point; Lumbar left lateral flexion normal range of motion is 25 , today's result: 25 degrees, pain with movement and at end point; Lumbar right lateral flexion normal range of motion is 25, today's result 25 degrees, pain with movement and at end point; Lumbar right rotation normal range of motion is 30, today's result: 20 degrees, pain with movement and at end point. Lumbar left rotation normal range of motion is 30 , today's result: 20 degrees, pain with movement and at end point.

In their reply affirmation, defendants challenge the veracity of Dr. Jong's affidavit in comparison to his actual medical notes concerning the two plaintiffs. Having reviewed and compared the medical notes with the information contained in Dr. Jong's affidavit, any [*6]discrepancies would not lead this court to conclude that either plaintiff did not suffer decreased range of motion as a result of the March 5, 2005 motor vehicle accident. Moreover, any such discrepancies go to issues of credibility which this court is not empowered to determine on a motion for summary judgment.

Accordingly, based on all of the foregoing this court finds that the plaintiffs have raised sufficient factual issues concerning the issue of serious injury to defeat the defendant's summary judgment motion. Therefore, the defendants' motion is denied in its entirety.

The foregoing constitutes the decision and order of this Court.

Dated: January 9, 2007

_______________________________

Patricia Anne Williams

ACTING JUSTICE OF THE

SUPREME COURT