Defendants Leslaw Kanik and Romualda Kanik, ("defendants" ) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the ground that plaintiff Amy Blas ("plaintiff")did not sustain a serious injury as that term is defined by Insurance Law § 5102 (d).

Defendant Manuel Blas cross-moves for an order requesting the same relief and adopts the facts and arguments advanced by the Ranik defendants.

Background

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Amy Blas (plaintiff), as a result of a motor vehicle collision that occurred on May 15, 2003, at the intersection of Driggs Avenue and Grand Street in Brooklyn, New [*2]York. Plaintiff was a passenger in a motor vehicle owned and operated by defendant Maunel Blas which was struck by a motor vehicle owned by defendant Romualda Kanik, and operated by defendant Leslaw Ranik. Plaintiff alleges that defendants' negligence proximately caused her injuries.

In her bill of particulars, plaintiff alleges that she sustained, inter alia, central disc protusion C2-C3, central disc herniations C5-C6, disc bulge C3-C4, right cubital tunnel syndrome, lower back pain, ulnar neuropathy and right and left rib contusion.

In their motion, defendants assert that plaintiff did not sustain a "serious injury"^[FN1] as the term is defined by Insurance Law 5102 (d) and, therefore, her claims should be dismissed.

In order to establish that she suffered a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system, plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration (see Oberly, 96 NY2d 295 [2001]; Grossman, 268 AD2d at 83; Booker v Miller, 258 AD2d 783 [1999]). Resolution of the issue of whether a serious injury was sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part (see Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002]).

In opposition to defendants' motions, plaintiff proffers the affidavit of Dr. Jonathan Moldover, plaintiff's treating doctor, as well as her own affidavit. In his report, Dr. Moldover stated that he first examined plaintiff on May 28, 2003. He noted plaintiff's complaints of neck pain, radiating into her right arm along with upper thoracic pain. His examination revealed that plaintiff had sustained "significant cervical and thoracic strain with possibility of concussion and evidence of cervical radiculopathy ruling out a herniated disc". Dr. Moldover stated, that he treated plaintiff on May 11, 2005, at which time an electromyography was performed which revealed: "mild right C6 radicular dysfunction and bilateral median nerve entrapments at the wrists". The doctor noted that plaintiff's cervical MRI film revealed mild disc herniation at C5-C6 and central disc protrusion at C2-C3 with a disc bulge at C3-C4. Dr. Moldover stated that he re-examined the plaintiff on November 28, 2007, and found diffuse tightness across the upper back musculature. He opined that plaintiff's injuries were caused by the accident on "May 18, 2003". He further opined that plaintiff's injuries are permanent in nature. Dr. Moldover also stated that plaintiff still demonstrates medically significant restriction of motion in her cervical spine and has not improved beyond her present condition.

In her own affidavit, plaintiff asserts that three years after the date of the accident, she continues to experience upper back pain, lower back pain and right arm pain. Plaintiff states that [*5]over three years after the accident, she was unable to engage in pre-accident activities such as cleaning, washing dishes, writing letters and sitting for long periods. She further avers that she received physical therapy twice per week for two months after the accident and "then again from November 2005 through January 2006".

Plaintiff also submitted two unaffirmed radiology reports dated November 4, 2002 and August 4, 2004 on MRI studies taken of plaintiff's lumbar spine and cervical spine ^[FN2].

In reply, defendants argue, among other things, that the opposition by plaintiff fails to prove by admissible objective evidence that she suffered a "serious injury". Defendants also assert that plaintiff failed to rebut Dr. Lastig's findings that the cervical disc pathology alleged by plaintiff is degenerative in nature and pre existed the accident.

Discussion

Based upon the record before it, the court finds that plaintiff's submissions in opposition, failed to rebut defendants' prima facie showing that she did not sustain a serious injury as a result of the May 15, 2003 accident [Duldulao v City of New York, 284 AD2d [2001]. The court notes that although defendants' radiologist stated that the MRI films taken of plaintiff's cervical spine showed degenerative disc diseases which he opined pre-existed the subject accident, plaintiff's treating doctor failed to address such findings in his report (see Pommells v Perez, 4 NY3d 566 [ 2005].

Further, although defendants' experts noted that in 1999 plaintiff had a back fusion done for a compensation injury and that plaintiff had a prior disability and was not working at the time of the accident, plaintiff's doctor failed to offer any evidence to show that the injury plaintiff sustained was caused by the subject accident rather than of her pre-existing condition. Nor has he even indicated that he was aware of plaintiff's medical condition prior to the accident that gave rise to her present action [Narducci v. McRae, 298 Ad2d 443 [2002]. When a plaintiff's treating physician fails to address the significance, or lack thereof, of a prior accident, the physician's conclusions causally linking plaintiff's current limitations to the subject accident are speculative and are not sufficient to rebut defendant's prima facie showing of "lack of serious injury" (see Simms v APA Truck Leasing Corp., 14 AD3d 322 [2005]). Moreover, where plaintiff's treating doctor, apparently unaware of pre-existing injuries, does not address them, plaintiff's medical proof is insufficient (see McNamara v Wood, 19 AD3d 921 [2005]). Further, where there is a pre-existing injury that a defendant has established is relevant to the injury in litigation, the failure of plaintiff's expert "to indicate an awareness of the condition" can lead to the conclusion that the expert's opinion on causation is fatally flawed even within the context of a motion for summary judgment (see Kallicharan v Sooknanan, 282 AD2d 573, 574 [2001]; see also Pajda v Pedone, 303 AD2d 729, 730 [2003]; Ginty, 300 AD2d at 625). Here, plaintiff's medical proof is insufficient because there is no objective basis [*6]for concluding that plaintiff's alleged injuries resulted from the subject accident and not the prior accident (see e.g. Montgomery v Pena, 19 AD3d 288, 290 [2005]).

Moreover, although plaintiff's doctor opined that her injuries are permanent and that plaintiff still demonstrates significant restriction of motion in her cervical spine, he has failed to set forth the objective tests he performed to support his conclusion that plaintiff's injuries are permanent in nature and that plaintiff suffers from significant restriction of motion in plaintiff's cervical spine (see Serrano v Canton, 299 AD2d 703, 705[2002]; Mazzotta v Vacca, 289 AD2d 305 [2001]. "It is required that an expert's affidavit identify the specific objective findings that serve as a predicate for the opinion rendered and also that an explanation be provided establishing a sufficient causal relationship between that objective finding and the injury, condition or limitation giving rise to the claim of serious injury, as well as between the injury and the accident itself." (see also Calucci v Baker, 299 AD2d 897 [2002][where the affidavit of plaintiff's chiropractor was insufficient as he failed to specify the tests he used to detect spasm or to measure the limitations of movement and state whether such tests were objective in nature]).

In the absence of objective evidence establishing causation, plaintiff's submissions are insufficient to demonstrate "serious injury" under consequential limitation of use or significant limitation of use categories (see, Franchini v Palmier, 1NY3d 537 [2000];Dabiere v Yaser, 297 AD2d 832 [2000]).

Additionally, to the extent that Dr. Moldover's affidavit properly relies on his own examination findings, there is a clear gap in treatment that is not explained (Polmmells, 4NY3d 566, 574; Paulino v Davi, 279 AD2d 619 [2002]. Dr. Moldover fails to offer an explanation for the more than two and a half year gap between his examination of plaintiff on May 11, 2005 and his most recent examination of the plaintiff on November 28, 2007, subsequent to the summary judgment motion. Further, Dr. Maldover failed to set forth the treatment, if any, that plaintiff received for her alleged injuries during that time (see Smith v Askew, 264 AD2d 834 [1999].

Finally, plaintiff's own self-serving affidavit is insufficient to prove that she sustained a medically determined injury or impairment which prevented her from performing all the material acts which constituted her usual customary activities for 90 of the 180 days immediately following the accident (see ,Gaddy, 79 NY2d at 958; Crandall v sledziewsk, 260 Ad2d 754, 757 [1999]. Based on the record before the court, plaintiff was disabled at the time of the accident, she had spinal surgery done in May 1999 and suffered from chronic back pain.

Conclusion

Accordingly, based on the foregoing, plaintiff has failed to raise an issue of fact as to whether she sustained a serious injury as set forth in Insurance Law 5102 (d), as a result of the May 15, 2003 accident and as such defendants' motion and cross-motion for summary judgment dismissing the plaintiff's complaint are granted.

The foregoing constitutes the decision and order of the court.

E N T E R, [*7]

J. S. C.