Defendant, JUAN C. ARRIAZA, moves for an order, pursuant to CPLR §3212 and and Article 51 of the Insurance Law, for an order dismissing the complaint of plaintiff, NICHOLAS FIORILLO, on the ground that the injuries alleged by the plaintiff do not satisfy the "serious injury" threshold requirement of Section 5102(d) of the Insurance Law of the State of New York and, as such, plaintiff has no cause of action under Section 5104(a) of the Insurance Law. Plaintiff opposes the motion which is determined as follows:

The action arises out of a two-vehicle collision that took place on June 25, 2004 on Suffolk County Road 97, at or near its intersection with Greenbelt Parkway, Holbrook, New York. According to the plaintiff, his vehicle was struck by the vehicle driven by the defendant. Although he declined medical assistance at the scene of the accident and did not seek immediate medical attention, he claims that he developed severe neck pain the following day and sought treatment from his regular doctor, Dr. Rothman, who sent him for x-rays and referred him for physical therapy. Plaintiff selected Dr. Lippman, a medical doctor licensed in physical medicine and rehabilitation, and under his care plaintiff was prescribed pain killers, received an MRI and EMG test, and underwent a course of physical therapy, twice per week over a period of six months, when treatment stopped. At his deposition, on October 31, 2005, plaintiff testified that about one week before the deposition, he started feeling pain again and returned to Dr. Lippman's office to resume physical therapy. At his deposition, he testified that he was confined to his bed for one (1) [*2]week following the accident, and to his home for about two (2) weeks, was out of work for about six (6) to seven (7) weeks for which he was compensated, and declined overtime work for a couple of weeks. He claims that he still feels slight pain in his neck and left shoulder when they are moved and that his injury has affected his ability to swim, bike, go to the gym, as well as to open doors at his job. He is employed as a conductor for the Long Island Railroad.

On December 14, 2004, plaintiff commenced the instant action for personal injuries against defendant by filing and later serving the Summons and Complaint. On or about February 3, 2004, defendant interposed an answer denying the material allegations of the complaint together with affirmative defenses. Following joinder of issue, plaintiff served a Bill of Particulars in which he alleged that he sustained the following injuries, which are permanent, chronic and progressive in nature and accompanied b a mental and emotional overlay including anxiety, irritability and depression:

Bursitis of the acromioclavicular joint (left shoulder);

Reversal of the normal cervical lordosis and cervical spondylosis at C2-C3, C3-C4,C4-C5 and C5-C6;

Left sided C5-6 and C7 radiculopathy;

Cervical sprain;

Decreased cervical range of motion:

Lumrosacral spasm;

Left hand weakness;

Verified Bill of Particulars, annexed to moving papers as Exhibit "C", paragraph 5.

Upon the instant application, defendant now moves for summary judgment dismissing the complaint on the ground that the injuries claimed by the plaintiff fail to meet the "serious injury" threshold requirement of the No Fault Law. In support of the motion, counsel for defendant points to the objective medical evidence and plaintiff's admissions at his deposition that show that plaintiff did not sustain a "serious injury". Counsel for defendant contends: 1) the x-ray of plaintiff's cervical spine, taken by Dr. Peyser on June 30, 2004, reflect "[n]o soft tissue swelling or fracture" . . . "disc spaces are of normal height and alignment" and "[n]o swelling or fracture is demonstrated". The cervical x-ray is interpreted as "unremarkable"; 2) the x-ray of plaintiff's left shoulder, taken by Dr. Stapen on August 21, 2004, shows mild osteoarthritic changes of the acromioclavicular joint tissue calcification that is compatible with calcified arthritis, not causally related to the accident; 3) the MRI of plaintiff's cervical spine, taken by Dr. Cavaliere on August 24, 2004, shows reversal of the normal cervical lordosis, with degenerative endplate changes and cervical sponodylosis, but no evidence of focal disc herniation at any level. Counsel states that spondylosis is the term used to describe osteoarthritis when it affects the neck, which is a congenital/degenerative disc disorder involving the narrowing of the passage through which the nerve passes because of encroaching bone and cartilage, and, coming so soon after the accident, does not establish a serious injury causally related to the accident, citing Armstrong v Wolfe 133 AD2d 957, 520 NYS2d 466 (3rd Dept. 1987).

In further support of the motion, defendant submits the affirmed report of Isaac Cohen, M.D., a Diplomate of the Board of Orthopedic Surgeons, dated December 7, 2005, who examined the plaintiff on said date, reviewed his records and diagnosed plaintiff with a resolved "cervical sprain". Dr. Cohen concluded that plaintiff sustained mild soft tissue [*3]injury as a consequence of this accident from which he has recovered and has a completely normal function of the cervical spine and both upper extremities. Additionally, defendant submits the affirmed report of Daniel B. Rubin, M.D., a board certified neurologist, who examined plaintiff on December 6, 2005, reviewed his records and diagnosed plaintiff with a "cervical sprain". He concluded that the MRI two (2) months after the accident showing degenerative changes was consistent with "preexisiting osteoarthritis" and that plaintiff has no objective finds of cervical radiculopathy or other accident related injury.

Counsel for defendant urges that the injuries claimed by plaintiff do not qualify as a "serious injury" within the meaning of Insurance Law §5102(d) and that defendant is entitled to judgment dismissing the complaint.

Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. (Licari v Elliot, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088 [C.A. 1982]). On the present motion, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a "serious injury." (Lowe v Bennett, 122 AD2d 728, 511 NYS2d 603 [1st Dept. 1986], affirmed, 69 NY2d 701, 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 prima facie evidence in admissible form to support the claim of serious injury. (Licari, supra ; Lopez v Senatore, 65 NY2d 1017, 494 NYS2d 101 [1985]).

In opposition to the motion, counsel for plaintiff contends that plaintiff has provided the Court with sufficient evidence that he has sustained a proven permanent limitation of use of the cervical spine and left upper extremity. He submits the affirmed report of Eric S. Lippman, M.D., dated November 20, 2006, who treated plaintiff over a period of time, and concludes that plaintiff has a significant limitation of use of his left upper extremity as well as his cervical spine.This conclusion is patently insufficient and speculative because Dr. Lippman never addressed the findings reported by plaintiff's radiologists, Dr. Stapen and Dr. Cavilieri, that plaintiff's complaints were the result of mild osteoarthritic changes and not any trauma related abnormality. See, D'Alba v Choi, 33 AD3d 650, 823 NYS2d 423 (2nd Dept. 2006); Gomez v Epsten, 29 AD3d 950, 818 NYS2d 101 (2nd Dept, 2006); Bycinthe v Kombos, 29 AD3d 845, 815 NYS2d 693 (2nd Dept. 2006). Additionally, the report reflects that Dr. Lippman examined plaintiff and found, inter alia, "mild reduced cervical range of motion" and "50 degrees of extension of the cervical spine", but does not set forth any objective tests that he performed to support his conclusions or any range of motion measurements or comparisons to normal cervical range of motion. See, Faulkner v Steinman, 28 AD3d 604, 813 NYS2d 529 (2nd Dept. 2006); Teodoru v Conway Transport Service, Inc., 19 AD3d 479, 798 NYS2d 466 (2nd Dept. 2005). Also, Dr. Lippman's report fails to show that plaintiff has significant limitations in his left shoulder caused by the accident because he does not set forth any limitations of plaintiff's left shoulder in the near aftermath of the accident. When Dr. Lippman first examined plaintiff, on July 1, 2004, he reported no limitations in the range of motion of plaintiff's left shoulder; on August 18, 2004, seven (7) weeks after the accident, he did not report any limitation of motion of plaintiff's left shoulder; on December 1, 2004, five (5) months after the accident, and on October 17, 2005, sixteen (16) months after the accident, he did not report any limitation of motion of plaintiff's left shoulder. Defendant has not proffered any competent medical evidence that was contemporaneous with the accident to show any initial range of motion limitation. Cf. Bell v Rameau, 29 AD3d 839; 814 NYS2d 534 (2nd Dept. 2006); Ranzie v Abdul-Massih, 28 AD3d 447, 813 NYS2d 473 (2nd Dept. 2006). Moreover, Dr. Lippman cannot rely on the results of the second cervical MRI, performed on September 13, 2006, to prove that plaintiff has a causally related permanent injury to his cervical spine, because the findings of the radiologist who supervised the MRI are not tendered in admissible form or even annexed to plaintiff's opposition. Jackson v Colvert, 24 AD3d 420, 805 NYS2d 424 (2nd Dept. 2005); Sayas v Merrick Transportation, 23 AD3d 367, 804 NYS2d 769 (2nd Dept. 2005). Nor does the radiologist who performed the MRI report any opinion as to the causality of the findings. Collins v Stone, 8 AD3d 321,778 NYS2d 79 (2nd Dept. 2004); Betheil-Spitz v Linares, 276 AD2d 732,715 NYS2d 435 (2nd Dept. 2000).

.Finally, no competent medical evidence is submitted to demonstrate that plaintiff was unable to perform substantially all of his daily activities for not less than 90 of the 180 days immediately following the accident because of a medically determined injury or impairment of a non-permanent nature (Mohamed v Siffrain, 19 AD3d 561, 797 NYS2d 532 [2nd Dept. 2005]; Liao v Festa, 18 AD3d 448, 794 NYS2d 905 [2nd Dept. 2005]; Kivlan, [*5]supra ; Kearse v New York City Transit Authority, 16 AD3d 45, 789 NYS2d 281 [2nd Dept. 2005]). In the absence of such competent medical evidence, plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact (Rodney v Solntseu, 302 AD2d 442, 754 NYS2d 911 [2ndDept. 2003]).

Based on the foregoing, the Court is compelled to conclude that plaintiff has not met his burden of raising a triable issue of fact as to whether he sustained the requisite "serious injury." Accordingly, defendant's motion for summary judgment dismissing the complaint must be granted. It is therefore

ORDERED, that defendant's motion for an order dismissing the complaint on the ground that plaintiff do not satisfy the "serious injury" threshold requirement of Section 5102(d) of the Insurance Law of the State of New York and, therefore, has no cause of action under Section 5104(a) of the Insurance Law is granted.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: March 12, 2007

_________________________

William R. LaMarca, J.S.C.

TO:

fiorillo-arriaza,#

01/sumjudg