This is a motion for summary judgment brought by defendant in this personal injury action. At issue is whether plaintiff Robert Hildenbrand ("plaintif") sustained "serious physical injury" as that phrase is defined in Insurance Law § 5102 (d).

At about noon on March 17, 2005, plaintiff was driving to his job as a school bus driver. As he drove through the intersection of Albany Avenue and Chandler Drive in the City of Kingston, his automobile was struck on the left front quarter by the vehicle driven by defendant. The force of the [*2]impact caused plaintiff to strike his head against the interior of his car. Plaintiff may have lost consciousness momentarily, but he was alert shortly after the accident. Police arrived on the scene. Plaintiff refused medical attention and was able to drive back to his home where he rested briefly before heading back to work.

By the following morning, plaintiff was experiencing severe headaches as well as pain in his neck. He went to the emergency room of Benedictine Hospital and had a CAT scan taken of his head. Finding the results normal, the hospital doctor recommended that plaintiff consult his treating physician and prescribed the use of ibuprofen for the pain.

Plaintiff made an appointment to see his regular doctor, Ravi Ramaswami, on the next business day. Dr. Ramaswami then sent plaintiff to Kingston City Hospital for an MRI of his head and neck. The results of these tests showed, in addition to evidence of degenerative disc disease, bulging cervical discs and impingement of the spinal cord. Dr. Ramaswami recommended that plaintiff remain out of work and referred him to a neurosurgeon, Gabriel Aguilar, M.D. This physician's diagnosis of plaintiff's condition was "cervical pain syndrome with subjective radiculopathy."

While he continued treatment with Dr. Ramaswami, plaintiff continued to report pain in his neck and chest, with pain also radiating through his left shoulder and arm. Referral to a pain management specialist, cortisone injections, and physical therapy were apparently unsuccessful in alleviating plaintiff's symptoms. After nearly a year of treatment, Dr. Ramaswami concluded that plaintiff was disabled and that his condition was not likely to improve.

Plaintiff's treating physicians ascribe his persistent pain, limitation of range of motion, and inability to lift to the automobile accident of March 17, 2005. The report of the independent medical examination of plaintiff performed by Dr. Rene Elkin on July 7, 2006, however, attributes plaintiff's ongoing symptoms "to the presence of degenerative disease of the cervical spine for which there is no traumatic etiology." Meanwhile, plaintiff has been determined by the Social Security Administration to be disabled due to "musculoskeletal impairments."

Insurance Law § 5102 allows a plaintiff to bring a lawsuit outside New York's "no-fault" statute provided the plaintiff has suffered "serious injury." This phrase is defined in the statute:

(d) "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

In the instant case, plaintiff's theories of entitlement to recovery are based upon allegations of "significant limitation of use of a body function or system" and "medically determined injury or impairment of a non-permanent nature" that prevented plaintiff from performing substantially all of his regular activities for ninety of the one hundred eighty days following the accident. Defendant, on the other hand, alleges that there are no triable issues of fact that would support this position and that, instead, the evidence shows that plaintiff cannot meet the threshold showing of serious injury. [*3]

"[A] defendant seeking summary judgment as to the no-fault threshold bears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case" (McElroy v. Sivasubramaniam, 305 AD2d 944, 945 [3d Dep't 2003] [citations omitted]). To meet this burden, the defendant may rely on the unsworn records of the plaintiff's own physicians to establish the lack of serious injury (McElroy, 305 AD2d at 944, citing Seymour v. Roe, 301 AD2d 991, 991 [3d Dep't 2003] & Cody v. Parker, 263 AD2d 866, 867 [3d Dep't 1999]). In this case, the reports of the treating and examining physicians, when coupled with plaintiff's deposition testimony, form a sufficiently complete picture of plaintiff's condition to show that defendant has met her burden of going forward in the first instance to establish the lack of a triable issue of fact regarding serious injury.

Stated succinctly, defendant's evidence shows that immediately after the accident, plaintiff declined medical treatment, drove his car home, and then returned to work to finish his shift as a school bus driver. Defendant's evidence also tends to prove that plaintiff's complaints of pain, loss of range of motion, and inability to continue working stem from degenerative disc disease, a condition completely unrelated to the automobile accident. Thus, defendant has successfully met her burden of coming forward with evidence which, if uncontroverted, would entitle her to judgment as a matter of law (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 384 [2005] [citations omitted]).

Defendant having met her burden of going forward on this motion for summary judgment, the burden now shifts to plaintiff to prove the existence of a triable issue of fact regarding serious injury (see Gaddy v. Eyler, 79 NY2d 955, 957-958 [1992], aff'g 167 AD2d 67 [3d Dep't 1991]). To that end, plaintiff provides an affidavit which amplifies and supports his deposition testimony that, prior to the accident, he had been symptom-free and had not missed a day of work in two years. In addition, plaintiff highlights portions of the independent medical report of Dr. Elkin which objectively verify plaintiff's limitations of motion as well as the existence of "significant paraspinal muscle spasm."

Objective proof of pain and limitation of range of motion is admissible to defeat a summary judgment motion (see, e.g., Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 351 [2002] and cases cited therein). Moreover, medical observation of muscle spasms may constitute competent proof of serious injury (Santos v. Marcellino, 297 AD2d 440, 441-442 [3d Dep't 2002]). Plaintiff has, thus, succeeded in demonstrating the existence of a triable issue of fact with regard to the question of serious physical injury. In addition, plaintiff has also shown that there is a triable factual issue relative to whether his physical condition is the result of the accident of March 17, 2005.

Accordingly, it is

ORDERED, that defendant's motion for summary judgment is, in all respects, denied.

This shall constitute both the Decision and Order of the Court. All papers, including this Decision and Order, are being returned to the attorneys for plaintiffs. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.

SO ORDERED.

ENTER.

Dated:May 14, 2007

Kingston, New York [*4]

Hon. Kimberly A. O'Connor

Acting Supreme Court Justice