This motion by plaintiff for partial summary judgment as to liability is denied as moot in light of this court's disposition of the cross-motion. The cross-motion by defendants for summary judgment dismissing the plaintiffs' complaint is granted.

On April 11, 2005, plaintiff, a police officer, was sitting in a three-wheeled police traffic scooter writing a ticket when the scooter was struck from behind by a school bus owned and operated by defendants. The driver of the bus testified that the impact was "light" (Deposition of Woodlan J. McClou, October 17, 2006). Post-accident photographs of the scooter show no visible damage. Plaintiff was removed by ambulance to an emergency room where x-rays performed there were negative for fractures and he was released. Two months later, plaintiff had arthroscopic surgery to his left shoulder and, in December 2005, arthroscopic surgery to his left knee. He commenced this action against the defendants alleging injuries as a result of the accident to include a left shoulder rotator cuff tear, superior labral anterior to posterior (SLAP) tear, aggravation of acromioclavicular joint degenerative condition, traumatic left knee chondromalacia, left index finger synovitis and cervical sprain/strain. At the close of discovery plaintiff moved for partial summary judgment as to liability and defendants cross-moved for summary judgment dismissing the action for plaintiff's failure to demonstrate a serious injury.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at [*2]trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]).

In order to recover for non-economic loss resulting from an automobile accident under New York's "No-Fault" statute, Insurance Law § 5104, the plaintiff must establish, as a threshold matter, that the injury suffered was a "serious injury" within the meaning of the statute. "Serious injury" is defined by Insurance Law § 5102(d) to include, among other things not relevant here, a "permanent loss of use of a body organ, member, function or system", a "permanent consequential limitation of use of a body organ or member", a "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 constitutes such person's usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment."

The initial burden on a threshold motion is upon the defendants to present evidence establishing that plaintiff has no cause of action, i.e.: that no serious injury has been sustained. It is only when that burden is met that the plaintiff would be required to establish prima facie that a serious injury has been sustained within the meaning of Insurance Law § 5102(d) (Franchini v. Palmieri, 1 NY3d 536 [2003]; Licari v. Elliot, 57 NY2d 230 [1982]).

To make out a prima facie case of serious injury, a plaintiff must produce competent medical evidence that the injuries are either "permanent" or involve a "significant" limitation of use (Kordana v. Pomelito, 121 AD2d 783 [3rd Dept 1986]). A finding of "significant limitation" requires more than a mild, minor or slight limitation of use (Broderick v. Spaeth, 241 AD2d 898, lv denied, 91 NY2d 805; Gaddy v. Eyler, 167 AD2d 67, aff'd, 79 NY2d 955). A permanent loss of use must be "total" in order to satisfy the serious injury threshold (Oberly v. Bangs Ambulance, 96 NY2d 295 [2001]; Hock v. Aviles, 21 AD3d 786 [1st Dept 2005]). Strictly subjective complaints of a plaintiff unsupported by credible medical evidence do not suffice to establish a serious injury (Scheer v. Koubek, 70 NY2d 678 [1987]). To satisfy the requirement that plaintiff suffered a medically determined injury preventing her from performing substantially all of her material activities during 90 out of the first 180 days, a plaintiff must show that "substantially all" of her usual activities were curtailed (Gaddy, 167 AD2d 67). The "substantially all" standard "requires a showing that plaintiff's activities have been restricted to a great extent rather than some slight curtailment" (Berk v. Lopez, 278 AD2d 156 [1st Dept 2000], lv denied, 96 NY2d 708). Allegations of sprains and contusions do not fall into any of the categories of serious injury set forth in the statute (Maenza v. Letkajornsook, 172 AD2d 500 [2nd Dept 1991]).

The defendant may rely on medical records and reports prepared by plaintiff's treating physicians to establish that plaintiff did not suffer a serious injury causally related to the accident (Franchini, 1 NY3d 536). Once the burden has shifted however, an affidavit or affirmation by the person conducting a physical examination of the plaintiff is necessary to establish a serious injury, unless plaintiff is offering unsworn reports already relied upon by the defendant (Grossman v. Wright, 268 AD2d 79 [3rd Dept 2000]; see also Zoldas v. Louise Cab Co.,108 AD2d 378 [1st Dept 1985]). The affirmation must set forth the objective medical tests and [*3]quantitative results used to support the opinion of the expert (Grossman, 268 AD2d 79). "An expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (cite omitted)" (Toure v. Avis Rent A Car Systems, 98 NY2d 345 [2002]). A conclusory affidavit of the doctor does not constitute medical evidence (Zoldas, 108 AD2d 3778; see also Lopez v. Senatore, 65 NY2d 1017 [1985] [conclusory assertions tailored to meet statutory requirements insufficient to demonstrate serious injury]).

In support of the cross-motion, defendants offered plaintiff's bill of particulars, line of duty injury reports, accident photographs, MRI reports and the affirmations of Dr. Hal S. Gutstein and Dr. Maurice C. Carter. Plaintiff's bill of particulars listed the injuries set forth above and stated that plaintiff lost seven weeks of work immediately after the subject accident.

Various line-of-duty injury reports showed plaintiff suffered prior injuries to his left arm on four occasions, left hand on four other occasions, his left shoulder was injured in 2001, and his left knee was injured in 2000 and 2005, the last incident in March 2005, one month before the subject accident. A report of an MRI examination of his left shoulder, performed on June 3, 2005, approximately seven weeks after the accident, showed a full thickness tear of the supraspinatus tendon, no joint effusion, suspicion of a SLAP tear and degenerative changes to the acromioclavicular joint with osteophytes causing mechanical impingement. Report of an MRI of plaintiff's left knee performed on the same date, however, showed the study was "unremarkable".

Dr. Gutstein, neurologist, examined plaintiff on September 15, 2006. Plaintiff was able to do full deep knee bends and stand on his toes and heels without difficulty. Dr. Gutstein found no cervical muscle spasm and a negative Foramen Compression Test. Range of motion of the cervical and lumbar spine was normal except for cervical extension, 25 degrees out of 30, and lumbar flexion, 40 degrees out of 45. Dr. Gutstein concluded that plaintiff had suffered an aggravation of cervical strain/sprain as a result of the subject accident, but was currently neurologically intact with no evidence of significant neurological injury, permanent impairment of the cervical spine or material neurologic disability. Dr. Gutstein deferred opinion as to the plaintiff's left shoulder and left knee to an orthopedic specialist.

Dr. Carter, orthopedist, examined plaintiff and various medical records on September 19, 2006. Plaintiff complained of pain in his neck and back, in his left shoulder if he held a weight with his arm extended and pain in his left knee with prolonged walking, elevation activities and squatting. He reported his hand was "pretty much okay". Plaintiff was able to walk on heels and toes and bend forward to touch his fingers on his toes. Strength in the left shoulder was excellent, but plaintiff allowed only a limited range of motion to be carried out, with complaints of pain. Both knees moved from 0 to 120 degrees in flexion. Plaintiff had equal lateral rotation with active extension of both knees (a meniscal sign). Plaintiff complained of pain in lowering the knee from this test. McMurry's test was negative and there was no joint line tenderness.

In reviewing plaintiff's medical records, Dr. Carter noted that plaintiff had arthroscopic surgery to his left shoulder and left knee, but that the medical records provided by plaintiff reflected no range of motion or strength testing before and after surgery, making it impossible to tell if surgery had increased or decreased plaintiff's left shoulder and left knee range of motion or the extent to which those measurements were limited before the surgery, if at all. The first [*4]mention of left shoulder measurement was one month after surgery on August 22, 2005 when it was noted only that left shoulder range of motion was 120 degrees. On October 10, 2005, plaintiff's records reported that 90% of his range of motion in the left shoulder had returned. On that date records reflect plaintiff complained to his surgeon of a problem with the left knee for the first time and surgery was again recommended. In December 2005 arthroscopic surgery on the left knee shaved chondromalacia and removed a plica, defined by Dr. Carter to be a "congenital remnant". Dr. Carter stated that shaving chondromalacia and resection of a plica usually does no good and sometimes can even do harm. Given that plaintiff presumably completed physical therapy and has continued to complain of pain, Dr. Carter could not understand why the surgeon had not ordered post-operative x-rays or MRIs. A review of plaintiff's previous injuries showed prior tendinosis and rotator cuff strain in plaintiff's left shoulder in 2001and a motor vehicle accident in 1999 resulting in left shoulder, neck and back injuries. Since range of motion and strength of plaintiff's left shoulder and left knee were not measured pre- and post-operatively, it would be impossible to show which traumatic events caused the injuries addressed by the surgeries, and to what extent. In addition, Dr. Carter stated that surgery for the left knee appeared not to have been indicated, given the negative MRI report, and there were no records relative to neck or back injury.

In opposition to the cross-motion, plaintiff offered his own affidavit and the affirmation of Dr. Jerry A. Lubliner, plaintiff's surgeon and treating physician. Plaintiff stated in his affidavit dated March 30, 2007 that, since the accident, he has been unable to perform his usual household activities and hobbies, such as jogging, mowing the lawn, repairing plumbing, painting and playing with his children. He cannot play volleyball, football, soccer, horseshoes, bowl or swim. All the injuries suffered prior to the subject accident were "minor" events. He presently has "some restriction of motion" in his shoulder and it hurts when he picks up items heavier than 10 pounds or engages in any kind of manual labor. He suffers knee pain when walking or standing more than 10 to 15 minutes.

Dr. Lubliner first saw plaintiff on June 8, 2005 finding a 5' 10" man weighing 260 pounds. Dr. Lubliner offered numerical measurements demonstrating the restricted range of motion in plaintiff's left shoulder at that time. He noted the MRI report showing a full thickness tear of the supraspinatus tendon, findings suspicious for a SLAP tear and AC joint degenerative changes. Because Dr. Lubliner believed plaintiff had a rotator cuff tear, he performed surgery. The post-operative diagnosis was partial tear of the rotator cuff and a SLAP tear. The condition was repaired.

By October 10, 2005, plaintiff had regained 90% of motion and increased strength in his left shoulder. Plaintiff had begun to complain of pain in his left knee as early as August 2005. The left knee was tested for range of motion and it was noted to be full. Nevertheless, Dr. Lubliner recommended surgery because of plaintiff's complaints of pain affecting his daily living activities. On December 22, 2005, Dr. Lubliner operated on plaintiff's knee. The post-operative diagnosis was chondromalacia, plica and scar tissue on the medial meniscus. He performed removal of the plica and a shaving chondroplasty.

By May 17, 2006, plaintiff had full range of motion of his left shoulder with pain at the final 10 degrees. He had full range of motion of his left knee. On June 21, 2006, plaintiff had full range of motion of both the left shoulder and left knee. In December 2006, however, [*5]plaintiff was showing some loss of range of motion of his left shoulder. On March 5, 2007, range of motion of the left shoulder had improved, but had not returned fully. According to Dr. Lubliner, range of motion of the left knee had slightly decreased from the normal 0/170 to 0/140.

Dr. Lubliner concluded that plaintiff suffered an acute tear of the superior labrum in his shoulder as a result of the subject accident and that it was "fixed" with surgery. He reasoned that the injury occurred at the time of the subject accident because, if the tear had happened previously, plaintiff would not have been able to work full duty as he was doing just before the subject accident. As for plaintiff's knee, Dr. Lubliner concluded that "[t]here must have been degeneration due to age and use" in plaintiff's left knee that was "never diagnosed", but which was exacerbated by the subject accident. "The knee surgery was meant to remove any conditions that were interfering with the internal movement of the patella and other structures." Dr. Lubliner predicted that plaintiff would continue to have permanent recurrent pain of the left shoulder and loss of range of motion of 10 degrees or more in flexion and abduction. He predicted that plaintiff would have permanent recurring pain and loss of range of motion of 20 degrees in the left knee, because "[n]ot all people recover the same after an incident, surgery or treatment." He stated that the injuries requiring surgery were causally related to the subject accident.

Defendants have established their entitlement to summary judgment which plaintiff has not refuted with admissible medical evidence. Defendants met their burden of showing by admissible medical evidence that plaintiff had an MRI performed some seven weeks after the accident showing an "unremarkable" study of his left knee and offered no other objective evidence of injury to his knee before the surgery performed by Dr. Lubliner. Plaintiff's shoulder injuries were repaired by Dr. Lubliner, who apparently did not compare the shoulder's function before and after surgery to show whether the surgery itself had caused subsequent limitation in range of motion and strength or offer an opinion as to whether the shoulder injury was pre-existing. Dr. Gutstein found no permanent neurologic injury to plaintiff's cervical spine and there were no records offered of treatment to plaintiff's neck or back. Plaintiff's bill of particulars, noting that he returned to work seven weeks after the accident, precludes a finding that he was prevented from performing substantially all the material acts constituting his usual daily activities for 90 out of the first 180 days. Furthermore, plaintiff offered no evidence that he was at any time unable to dress, bathe or feed himself for a total of 90 days during that period of time.

Plaintiff's doctor has not raised an issue of fact as to either permanence, significance or causation. Even assuming that plaintiff suffered injury to his left shoulder in the subject accident as Dr. Lubliner asserts, and not as a result of previous accidents, Dr. Lubliner also asserts that the injury was corrected by surgery and full range of motion restored. Dr. Lubliner affirms, in addition, that plaintiff had full range of motion in his left knee both before and after surgery. His conclusion that range of motion in plaintiff's left shoulder and left knee is now permanently restricted as a result of the subject accident is completely contradicted by his own findings. Conditions successfully corrected by surgery do not constitute permanent injury. Dr. Lubliner has not explained his conclusion that, although plaintiff's left shoulder and left knee were restored to full range of motion, ostensibly due to his surgeries, subsequent decreases in function are still attributed to the subject accident. Plaintiff's subjective complaints of pain and limitation [*6]are insufficient by themselves to serve as evidence of serious injury.

The complaint is, therefore, dismissed. Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall enter judgment dismissing the plaintiffs' complaint.

This constitutes the decision and order of the court.

Dated: August 27, 2007

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..