Plaintiffs bring this action to recover damages for personal injuries alleged sustained as a result of a motor vehicle accident on August 8, 2000. Defendants now move for summary judgment to dismiss plaintiffs' complaint contending that plaintiffs did not sustain a serious injury as defined by Insurance Law §5102(d).

BACKGROUND:

The thrust of defendants' motion for dismissal of plaintiff Jose Soto's complaint centers on the similarity between the injuries which allegedly arose from the automobile accident on August 8, 2000 and two prior accidents which occurred in 1996 and May 9, 2000. Annexed to defendants' counsel's moving affirmation is a chart which compares the injuries Jose Soto alleges he sustained in the August 8, 2000 accident and the injuries he sustained in the two prior accidents mentioned above.

As to plaintiff Robert Soto, defendants assert that his alleged injuries which include a disc bulge at L5-S1, right shoulder derangement and right knee internal derangement do not constitute a serious injury.

Defendants' submission also includes plaintiffs' bill of particulars, ^[FN1] deposition transcripts of the examination before trial of each plaintiff, who were passengers in the motor vehicle [*2]accident owned by defendant Flowerport Enterprises, Inc.; ^[FN2] two bills of particulars of plaintiff Jose Soto submitted in a separate action instituted by Jose Soto against the City of New York; ^[FN3] a bill of particulars also prepared for Jose Soto in another action he commenced against defendants Dockweiler in the Supreme Court, Brooklyn, regarding an automobile accident that occurred on May 9, 2000; ^[FN4] approximately seven (7) unaffirmed medical reports prepared by Dr. Tonuca Basu at Cypress Hill Medical all relating to plaintiff Jose Soto for his alleged injuries arising from the May 9, 2000 automobile accident; ^[FN5] one (1) unaffirmed report also from Dr. Basu entitled "Internist Initial Consultation," apparently referring to the August 9, 2000 automobile accident; ^[FN6] seven (7) radiology reports all relating to plaintiff Jose Soto; ^[FN7] affirmed report of Dr. George Unis who performed an orthopedic examination of plaintiff Jose Soto on behalf of defendants on March 31, 2003; ^[FN8] neurological examination performed by Dr. Valderrama of plaintiff Jose Soto on March 31, 2003; ^[FN9] affirmed neurological report of plaintiff Robert Soto; ^[FN10] and finally the orthopedic evaluation of Robert Soto also affirmed. ^[FN11]

Plaintiffs' opposition raises several arguments. Initially plaintiffs assert that since the August 8, 2000 accident occurred in Delaware, Delaware Law should apply to "substantive issues" and, according to plaintiffs' attorney, Delaware Law "does not impose a serious injury threshold" in order for plaintiffs to be compensated.

Plaintiffs next argue that defendants have not met their burden of proof which precludes the Court from granting their motion.

CHOICE OF LAW ARGUMENT:

Plaintiffs' counsel first argument raises the choice of law or forum non-conveniens doctrine. Consequently this Court will resolve this issue first since, according to plaintiffs' [*3]opposition, the methodology that will be applied to determine whether plaintiff sustained serious injury under Delaware Law is less stringent than the threshold requirements mandated by Insurance Law §5102(d).

Plaintiffs' counsel starts with the proposition that Delaware adheres to the traditional rule of lex loci delicti in tort cases involving motor vehicle accidents. However, counsel's reliance upon the holding in Burke v. Elliott, 606 F. 2d 375(3d Cir. 1979) does not require this Court to automatically apply lex loci delicti to accidents occurring within Delaware's borders. The plaintiff in Burke, supra , was a Pennsylvania resident and allegedly injured in Delaware by a motor vehicle driven by a Delaware resident. Plaintiff, Kim Burke, pursued a no fault claim under her policy written pursuant to Pennsylvania's no fault law. In holding that Delaware had the primary interest in the action instituted by plaintiff the court, recognizing differing versions of no fault law between Delaware and Pennsylvania, took into consideration not only the site of the accident but also the residence of the defendant.

Our Courts have applied the traditional rule of the law of the place where the tort occurred to all substantive issues (cf Cooney v. Osgood Machinery Inc., 81 NY2d 66, 612 NE2d 277, 595 NYS2d 919) and although the United States Court of Appeals in Burke, (which plaintiff relies upon), rejected the holding by our Court of Appeals in Babcock v. Jackson, 12 NY2d 473, where Judge Fuld speaking on behalf of a majority Court reaffirmed the courts rejection of the "mechanical place of injury rule in personal injury cases because it failed to take account of underlying policy considerations....." (Neumeier v. Kuehner, 31 NY2d 121 at 127). Therefore, what is controlling is the law of the jurisdiction which has the greatest concern with the specific issue raised in the litigation and consequently Judge Fuld reiterating what he wrote in Tooker, (24 NY2d at p. 584) noted that the time has come "to endeavor to minimize what some have characterized as an ad hoc case-by-case approach by laying down guidelines, as well as we can, for the solution of guest-host conflicts problems". What evolved are several principals to resolve situations where guest statutes are presented in conflicting settings (24 NY2d at p. 585). Thus the law of the place of the tort has been replaced by interest analysis (see Schultz v. Boy Scouts of America Inc., 65 NY2d 189, 196) 480 NE2d 679, 491 NYS2d 90); Cooney v. Osgood Machinery, supra ,) 81 NY2d 66) that focuses on which jurisdiction has the greatest concern with the issues involved in the litigation (Schultz, supra , 65 NY2d 189). The Court of Appeals in Padula v. Lilarn Properties Corp., 84 NY2d 519, 521, 644 NE2d 1001, 620 NYS2d 310, (1994) applying the interest analysis test said we must first "determine what are the significant contacts and in which jurisdiction are they located..." and in most cases significant facts or contacts consist of the parties domiciles and the place of the tort (Schultz v. Boy Scouts, supra , at 197). In the case at bar neither plaintiffs or defendants except for the pleadings identify their residency. Both plaintiffs are New York residents, and were treated by various health care providers in New York, received physical therapy in New York, applied for benefits pursuant to New York's Comprehensive Automobile Insurance Reparations Act, (No-Fault) utilized our courts to pursue injury actions arising from prior accidents and were evaluated by physicians in New York retained by defendants to determine the nature and extent of plaintiffs' injuries. To suggest that these contacts do not demonstrate the willingness of both parties to accept the benefits and burdens identified with New York's no-fault law fails to recognize the clear intention of plaintiffs to choose New York as the venue to resolve their current injury claims. [*4]

Finally Neumeier, supra , unequivocally stated that situations where "the guest passenger and that driver are domiciled in the same state, and the car is there registered, the law of that state should control..." (see Neumeier v. Kuehner, 31 NY2d 121, at p. 128).

PLAINTIFFS' NO-FAULT CLAIMS:

Since New York's no-fault law will determine whether plaintiffs' injury claims may be sustained, this court will first examine plaintiff Robert Soto's bill of particulars. Plaintiff Robert Soto alleges that he sustained the following injuries:

Disc bulge at L5-S1

Right shoulder internal derangement

Right knee internal derangement with joint effusion. ^[FN12]

Other medical descriptions contained in plaintiff's Bill of Particulars, such as restriction of motion, cervical strains and muscle spasms represent at best issues of symptomology which standing alone do not meet the serious injury threshold contemplated by Insurance Law §5102(d).

After the accident, both plaintiffs returned by train to New York and the next day Robert Soto sought medical treatment at Bronx Lebanon Hospital, ^[FN13] complaining of right knee pain, neck pain and lower back pain.^[FN14] After his discharge from the hospital, (the same day), Robert Soto received physical therapy for four (4) months. ^[FN15]

SUMMARY JUDGMENT STANDARD:

It is axiomatic that the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of material issues of fact and the right to judgment as a matter of law. (Alvarez v. Prospect Hospital, 68 NY2d 320, 501 NE2d 572, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Medical Center, 64 NY2d 851, 476 NE2d 642, 487 NYS2d 316 [1985]).

Therefore, in the present action, the burden rests on defendant to establish, by the submission of proof in admissible form, that plaintiff did not suffer a "serious injury." (Lowe v. Bennett, 122 AD2d 728, 511 NYS2d 603 [ 1st. Dep't. 1986], aff'd, 69 NY2d 700, 504 NE2d 691, 512 NYS2d 364 [1986]). When a defendant's motion is sufficient to raise the issue of whether a "serious injury" has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce evidence in admissible form to raise material issues of fact of a serious injury. (Licari v. Elliott, 57 NY2d 230, 441 NE2d 1088, 455 NYS2d 570; Lopez v. Senatore, 65 NY2d 1017, 484 NE2d 130, 494 NYS2d 191 [1985]). However, defendants' failure to make such showing requires the court to deny the motion regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649, 444 NYS2d 305, [3d Dep't.] 1981; Greenburg v. Marlon Realty Inc., 43 AD2d 968, 969, 352 NYS2d 494, [2d Dep't. 1974]). On the basis of the record before this court defendants failed to make a prima facie showing. [*5]

DISCUSSION:

Dr. Ramon Valderrama performed a neurological examination of plaintiff Robert Soto on March 31, 2003. His affirmed report identifies the medical records he reviewed regarding plaintiff's treatment which included a narrative report prepared by Dr. Gaughan who performed nerve conduction studies which Dr. Gaughan indicated was normal. Dr.Valderrama also reviewed several MRI reports relating to imaging studies of plaintiff's right knee, cervical and lumbar spine. When plaintiff, Robert Soto appeared for his physical examination he is said to have walked with a cane and a brace on his right knee which Dr.Valderrama says plaintiff failed to remove. Dr.Valderrama noted full and unrestricted movement of plaintiff's cervical and lumbar spine and in Dr.Valderrama's opinion plaintiff's examination was normal.

Robert Soto was also examined by George Unis who performed an orthopedic evaluation. Referring to plaintiff's MRI reports Dr. Unis relates findings of a mild disc bulge at L5-S1 and the absence of any cervical bulges or herniation. He also refers to an MRI report of plaintiff's right knee which "reported a small joint effusion." ^[FN16] Examination of plaintiff's cervical and lumbar spine showed, according to Dr.Valderrama, satisfactory ranges of motion.

Plaintiff Jose Soto was also examined and evaluated by Dr.Valderrama and Dr.Unis on August 8, 2000. Both physicians submitted affirmed reports setting forth the medical records reviewed by each physician which included x-ray reports of plaintiff's lumbar and cervical spine, MRI reports of plaintiff's left shoulder and right elbow. Dr. Valderrama's recorded no limitations of plaintiff's cervical and lumbar spine without evidence of spasm of the paraspinal muscles or evidence of a neurological deficit.^[FN17] Dr.Unis's evaluation included a review of plaintiff, Jose Soto's, Cypress Hill Medical records, x-ray reports of plaintiff's cervical and lumbar spine, MRI reports of his left shoulder, right elbow spine and lumbar spine. Examination of Jose Soto's cervical spine, lumbar spine and right elbow failed to reveal any limitation of motion.^[FN18]

It is well-settled law that the burden of proof initially rests with the defendant and the failure of the defendant to meet this burden requires denial of defendants' motion regardless of the sufficiency of the opposing papers (Coscia v. 938 Trading Corp., 283 AD2d 538, 725 NYS2d 349 [2d Dep't. 2001]; Chaplin v. Taylor, 273 AD2d 188, 708 NYS2d 465 [2d Dep't. 2000]; Halloran v. Spina Floor Coverings Inc., 185 AD2d 149, 586 NYS2d 787 [1st Dep't. 1992] Redemption Church of Christ etc., v. Williams, 84 AD2d 648, 649, 444 NYS2d 305 [3d Dep't. 1981]).

In the case at bar, defendants' examination of plaintiff Robert Soto consisted of a neurological and orthopedic examinations. However, Dr.Valderrama's evaluation is deficient because he failed to describe the objective tests he utilized to support his conclusion that plaintiff had full range of motion. In other words, the report of defendants' neurologist did not specify the degrees of motion of plaintiff's cervical and lumbar spine or compare such findings to the normal range of motion (See Vasquez v. Basso, 27 AD3d 728 815 NYS2d 626 [2d Dep't. [*6]2006]; Jackson v. Colvert, 24 AD3d 420, 805 NYS2d 424 [2d Dep't. 2005]; Kouvarus v. Hertz Corp., 27 AD3d 813 NYS2d 144 [2d Dep't. 2006]). The only test performed was a Romberg test which is non-specific neurological test of a inner ear disfunction and therefore not indicative of a specific medical condition which impaired plaintiff's range of motion.

Dr.Unis performed an orthopedic evaluation of plaintiff, Robert Soto. His report also fails to identify objective tests he performed to support his finding that plaintiff did not sustain a disability. His reference to plaintiff's cervical and lumbar spine briefly describes that plaintiff demonstrates a "satisfactory range of motion." This statement including his evaluation that plaintiff's shoulder revealed a full range of motion is conclusory. Dr.Unis' opinion of regarding plaintiff's cervical and lumbar strain and his impression of a contusion of plaintiff's right shoulder and right knee is also conclusory. (See Manceri v. Bowe, 19 AD3d 462 [2d Dep't. 2005]; Gamberg v. Romeo, 289 AD2d 525, 736 NYS2d 64 [2d Dep't. 2001]). Moreover, this orthopedic examination was conducted almost three years after the accident and Dr. Unis' report does not explain the continuation of such conditions three years after the accident. Finally defendants' doctors causality opinion that plaintiff's condition "may have a relationship to the incident of 08/08/00" is without medical support. (See Bray v. Roses, 2006 NY Slip. Op. 3981; 29 AD3d 422, 815 NYS2d 69; Moore v. Arts Contracting Corp., 10 Misc 3d 131A, 814 NYS2d 563 [App. Term, 1st Dep't. 2005] ).

CONCLUSION:

Since defendants failed to make a prima facie showing, the sufficiency of plaintiffs evidence as to whether plaintiffs sustained a serious injury is unavailing.

Consequently, defendants' motion addressed to dismissing plaintiffs' complaint is denied.

This constitutes the decision and order of this Court.

Dated:2007

J.S.C.