Defendants Kwadwo Baawuah and Duzz Cab Corp. (defendants) move for an order, pursuant to CPLR 3211 and 3212, granting summary judgment and dismissing the complaint as against them on the ground that plaintiff Oscar Grant (plaintiff) did not sustain a "serious injury" as defined in Insurance Law § 5102 (d).^[FN1]

This is a negligence action for personal injuries allegedly sustained by plaintiff in a motor vehicle accident which occurred on April 18, 2004 (the accident). Plaintiff alleges that he was the [*2]operator of a motor vehicle which came into contact with two other vehicles, one of which was a taxicab owned by Duzz Cab Corp. and operated by Kwadwo Baawuah.

In his bill of particulars, plaintiff alleges that, as a result of the accident in question, he sustained severe traumatic injuries to his lumbar spine, cervical spine and left knee. Plaintiff asserts that his trauma constitutes a "serious injury" as set forth in Insurance Law § 5102 (d).

In the context of a motion for summary judgment, "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude[d] that no objective medical findings support the plaintiff's claim" of serious injury (Grossman v Wright, 268 AD2d 79, 83-84 [2000] [citation omitted]). Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury," the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Napoli v Cunningham, 273 AD2d 366 [2000] [citations omitted]).

Insurance Law § 5104 (a) provides that in any action by, or on behalf of, a covered person against another covered person for personal injuries arising out of negligence in the operation of a motor vehicle in New York, there shall be no right of recovery for non-economic loss, i.e., pain and suffering, except in the case of a "serious injury" (see Toure v Avis Rent a Car Systems, Inc., 98 NY2d 345, 350 [2002]).

The Court of Appeals has held:

"the legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries.' As such, we have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold; subjective complaints alone are not sufficient.

"In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury."

In support of their motion for summary judgment, defendants submit the sworn report of an orthopaedic surgeon, Dr. Michael J. Katz, who, after examining plaintiff and reviewing reports of plaintiff's doctors, concludes that all the injuries described in those reports and in plaintiff's bill of particulars, if existing at any point, have been resolved and that plaintiff is in no need of further treatment or testing. Dr. Katz's report describes the tests conducted and the findings of those tests. The range of motion tests on plaintiff's lumbar spine indicated, as follows: flexion at 50 degrees with 50 degrees normal, extension at 60 degrees with 60 degrees normal, right-sided lateral flexion at 45 degrees with 45 degrees normal, left-sided lateral flexion at 45 degrees with 45 degrees normal, right-sided rotation at 80 degrees with 80 degrees normal, and left-sided rotation at 80 degrees with 80 degrees normal. Dr. Katz concludes that there is no objective finding of a permanent injury and [*3]that plaintiff is capable of his activities of daily living and gainful employment in his current occupation as a pest control salesman.

In this case, defendants have satisfied their initial burden of establishing that plaintiff's injuries are not "serious," by submitting the sworn report of a medical expert who examined the plaintiff in July 2007 and concluded that no objective medical findings support plaintiff's claim of permanent loss, permanent consequential limitation or significant limitation (see Grossman, 268 AD2d at 84). Furthermore, by plaintiff's own admission at his pre-trial deposition, he was not disabled for not less than 90 days during the 180 days immediately following the subject accident. Plaintiff testified at his pre-trial deposition that he returned to work after approximately two to four weeks after the accident and that he could perform all of the activities of his daily living which he performed prior to the accident, except for lifting and playing basketball and other sports (see Licari v Elliott, 57 NY2d 230, 238 [1982] [plaintiff returned to work 24 days after his accident and resumed his usual taxi driving schedule]; Parkhill v Cleary, 305 AD2d 1088, 1090 [2003] [plaintiff missed six weeks of work after accident]; Szabo v XYZ, Two Way Radio Taxi Assoc., 267 AD2d 134, 135 [1999] [plaintiff's two-week absence from work, coupled with the limitations with respect to her computer work and her inability to hold little things the way she used to, did not meet the "substantially all" standard of the 90/180 category]; see also Jones v Gooding, Sup Ct, Kings County, May 19, 2006, Index No. 32067/99 [missing only one day of work as a result of the injuries sustained did not constitute a serious injury within the 90/180 category], aff'd, Jones v Gooding, 2008 NY Slip Op 03594 [2008]).

Plaintiff's Case

Plaintiff must present objective evidence of the injury by submitting medical affidavits or affirmations, based on a recent examination of plaintiff, that contain "verified objective medical findings" sustaining his claims of pain and limitation of motion (see Grossman, 268 AD2d at 84). Plaintiff submits an affirmation dated January 31, 2008 and an affirmed narrative report dated December 20, 2007 of Binod Shah, MD, a specialist in physical medicine and rehabilitation and plaintiff's treating physician since December 2005. In his affirmation and report, Dr. Shah states, under penalty of perjury, that he found restricted movement of plaintiff's lumbar spine when he last examined plaintiff in October 2007 (three months after plaintiff's examination by defendants' expert). Dr. Shah lists specific motion limitations in plaintiff's lumbar spine movements: flexion at 30 degrees with 90 degrees normal; extension at 10 degrees with 30 degrees normal; right rotation at 15 degrees with 25 degrees normal; left rotation at 15 degrees with 25 degrees normal; right bending at 15 degrees with 20 degrees normal; and left bending at 5 degrees with 20 degrees normal. He finds that plaintiff's decreased range of motion, coupled with plaintiff's "subjective complaints of pain," constitute "serious injuries which are permanent in nature and which causally related" to the motor vehicle accident involved in this case.

Plaintiff submits an affirmed narrative report dated December 20, 2007 of Stanley F. Wainapel, MD, another specialist in physical medicine and rehabilitation, who was plaintiff's treating physician between February 2005 and September 2005 when Dr. Shah took over plaintiff's treatment. Although no longer plaintiff's treating physician, Dr. Wainapel states that he examined plaintiff in October 2007 and obtained the following readings on the range of motion of plaintiff's lumbar spine: flexion at 40 degrees with 90 degrees normal; extension at 10 degrees with 30 degrees normal; right rotation at 15 degrees with 25 degrees normal; left rotation at 15 degrees with 25 degrees normal; [*4]right bending at 10 degrees with 20 degrees normal; and left bending at 10 degrees with 20 degrees normal.

Plaintiff also submits an unsworn and unaffirmed report dated April 22, 2004 from his initial treating physician, Felicita Chia, MD, who examined plaintiff shortly after the accident and conducted the range of motion tests on plaintiff's lumbar spine which indicated: flexion at 70 degrees with 90 degrees normal; extension at 20 degrees with 30 degrees normal; right lateral flexion at 20 degrees with 20 degrees normal; and left lateral flexion at 20 degrees with 20 degrees normal. Dr. Chia's examination demonstrated "moderate muscle spasm and tenderness of the right and left paraspinal musculature with multiple trigger points." She concluded that, due to the mechanism of injury inherent in the trauma suffered by plaintiff, the supporting issue of the spine became "less effective" and that plaintiff was, therefore, "subject to frequent exacerbation of symptoms as a result of the chronic joint dysfunction, which often ensues." Dr. Chia's unsworn prediction that plaintiff's condition may deteriorate over time was borne out by the subsequent affirmed reports of Drs. Shah and Wainapel. Consistent with the foregoing medical reports, plaintiff testified at his pre-trial deposition that he visited Drs. Chia, Wainapel and Shah for treatment, that Dr. Shah is his current treating physician and that he regularly receives epidural steroid injections from Dr. Shah.

Finally, plaintiff submits a sworn report of an MRI (Magnetic Resonance Image) of his spine taken on May 25, 2004 or approximately one month after the accident, which found protruded disc herniations noted posteriorly at the L3-L4, L4-L5 and L5-S1 discs.^[FN2]

The affirmation and affirmed report of Dr. Shah and the affirmed report of Dr. Wainapel, each reflecting recent examinations of plaintiff and containing results of objective tests, together with the sworn report of plaintiff's May 2004 MRI showing that he has several herniated discs, are sufficient to raise an issue of fact as to whether plaintiff sustained a "serious injury" within the meaning of Insurance Law § 5102 (d) (see, e.g., Hernandez v. Burkitt, 271 AD2d 648, 649 [2000]).^[FN3] Accordingly, defendants' motion for summary judgment is denied.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.