Upon the foregoing papers this motion by defendants for summary judgment dismissing the complaint pursuant to CPLR 3212 on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law 5102(d) is decided as follows:

Facts and Procedural Background

Plaintiff seeks recovery for injuries allegedly sustained on May 29, 2005 when he was involved in a two-car collision with a vehicle owned by defendant Drah Cab Corp. and driven by defendant Maty Sall.

Plaintiff alleges that he sustained the following injuries as a result of the accident:

"herniated nuclus pulposus at L4 - L5 deforming the thecal sac and abutting the bilateral L5 nerve root; posterior bulging disc at L5 - S1 deforming the proximal right S1 nerve root and abutting the proximal left S1 nerve root; diffuse posterior bulging disc at C3 - C4, C4 - C5 and C5 - C6 deforming the thecal sac and spinal cord diffusely." ^[FN1](Verified Bill of Particulars ¶ 11). It is alleged that these injuries are permanent (Id.) and that after the accident, plaintiff was confined to bed for three weeks and to home for twelve weeks, rendering him unable to work for the period May 29 - August 12, 2005 (Id. ¶¶ 13 -14). Defendant is seeking lost earnings for this period (Id. ¶14).

Defendants now move for an award of summary judgment asserting that plaintiff has not sustained a serious injury. In support, defendants submit copies of the pleadings (Exhibits A, B), the Verified Bill of [*2]Particulars (Exhibit C), as well as the affirmed 2007 reports of defendants' neurological and radiological experts (Exhibits D, E), and the transcript of plaintiff's 8/24/07 examination before trial (Exhibit F).

On November 28, 2007, plaintiff underwent a neurologic evaluation by Dr. Edward M. Weiland. He presented with complaints of neck, mid thoracic and lower back pain radiating to the shoulders and buttock areas. Dr. Weiland made his assessment having reviewed the Bill of Particulars as well as the police accident report, no medical records having been provided. The medical history provided was unremarkable. Upon examination, Dr. Weiland concluded that plaintiff had no neurologic disability. Examination findings include: full range of motion of the neck, shoulders, extremities as well as the lower torso. Examination of the shoulders as well as the cervical and lumbar spine revealed full range of motion in all planes as quantified and compared to normal. In addition, Lasegue's Maneuver was unlimited at 90 degrees, and there were negative Adson's Maneuver, Soto-Hall, Kemp's and Romberg's tests with no sign of active tissue inflammation or soft tissue swelling over the posterior aspect of the spine.

Dr. Robert Tantleff (Exhibit E) reviewed a 8/12/05 MRI of plaintiff's cervical spine and in his report dated November 19, 2007, incorporated his findings that the films revealed no evidence of disc bulge, protrusion or herniation and his conclusion that the films evidenced a normal MRI of the cervical spine. Likewise, upon review of the 8/9/05 study of plaintiff's lumbosacral spine Dr. Tantleff concluded that the study revealed a normal MRI finding with no evidence of disc bulge, protrusion, or herniation or of any acute or recent trauma or "post traumatic exacerbatory changes."

Plaintiff testified that immediately after the accident, he drove his car a few blocks and then stayed at a Manhattan hotel for the evening. He returned home to the Bronx the following morning. He commenced treatment at Castle Hill Chiropractic, P.C. within three to four days after the accident having been referred there by the attorney he had retained [Clemmer EBT: 71]. He treated at that facility two or three times a week through October 2005, undergoing a therapy modality that included electric stimulation, heat application, massage and chiropractic adjustments [EBT: 71 - 72; 75 - 76]. With the exception of his treatment visits, plaintiff stayed in bed at home for a two and one-half month period, and then returned to work at a full thirty-five hour weekly schedule [Id.: 15 19; 84]. Since ceasing treatment with Castle Hill in October 2005, he has not consulted with any other doctors concerning the injuries sustained in the accident [Id.: 92]. He testified as follows concerning the decision to terminate treatment.

Basically, it came to a point where I was - - there's no more no-fault and no more pay. I had to go back to work. It was - - when I first went back to work, I was rushing to leave work at 5:00 to get to Castle Hill before they closed, causing more stress and strain on my back, sometimes making it and sometimes not. It became a problem and that's basically what stopped. [Id.: 89: 15 - 23].

He did not apply to continue treatment through his employee healthcare benefits [Id.: 91]. Plaintiff also testified that he continued to experience radiating lower back pain of two to three hour intervals at least twice weekly and occasional neck pain. In addition, since the accident, he could not lift heavy objects [Id.: 92 - 95].

Upon review of the above medical submissions and plaintiff's deposition, it is submitted that defendants have met their initial burden of demonstrating that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). In light of this prima facie showing, it is incumbent upon [*3]plaintiff to overcome defendants' submissions by demonstrating a triable issue of fact that a serious injury was sustained (see, Pommells v Perez, 4 NY3d 566, 830 NE2d 278, 797 NYS2d 380[2005]; Gaddy v Eyler, 79 NY2d 955, 591 NE2d 1176; 582 NYS2d 990[1992]). Plaintiff's submissions fail to do so.

In opposition, plaintiff submits his affidavit and the transcript of his examination before trial; an unsworn report of Castle Hill Chiropractic dated 8/4/05, the August 2005 MRI reports, and the affidavit of Pervaiz Qureshi, M.D. who examined plaintiff for the first time on March 6, 2008.

The only medical submission tendered in admissible form, is Dr. Qureshi's affidavit. The MRI reports though unsworn, were of the diagnostic studies relied upon by defendants' expert for his radiologic assessment, and, as such, are properly before the court (see, Gonzalez v Vasquez, 301 AD2d 438, 439, 754 N.Y.S. 2D 7 [1st Dept. 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 445 [1st Dept. 2002]). The report of the chiropractor is not properly before the court and cannot be considered (Grasso v Angerami, 79 NY2d 813 [1991]).

The failure to submit admissible contemporaneous quantitative assessment of spinal range of motion limitations, or to provide any explanation for their omission, is fatal to plaintiff's claim (see, Guadalupe v Blondie Limo Inc., 43 AD3d 669, 841 NYS2d 525 [1st Dept. 2007]; Atkinson v Oliver, 36 AD3d 552 [1st Dept. 2007]). While plaintiff's expert's report of the diagnostic films indicates a herniation of the lumbar discs and bulging of the cervical disc, there is no tender of contemporaneous medical proof as to the duration, extent or degree of the alleged physical limitation attributable to the disc injury (see, Arjona v Calcano, 7 AD3d 279, 776 NYS2d 49 [1st Dept. 2004]). The examining physician's quantification of spinal limitations, more than two and one half years after the accident, is too remote in time to raise an issue of fact as to whether the limitations were caused by the accident (see, Lopez v Simpson, 39 AD3d 420, 835 N.YS. 2d 98 [1st Dept. 2007]; Jimenez v Rojas, 26 AD3d 256, 810 NYS2d 449 [1st Dept. 2006]; Ali v Khan, 50 AD3d 454, 857 N.YS. 2d 71 [1st Dept. 2008]).

In addition, the probative value of that physician's affidavit is further diminished by his incorporation of and reliance upon the unsworn reports of the treatment facility as well as by its conclusory language tailored to meet statutory and decisional requirements including the physician's statement that his findings of "permanent loss" and "permanent consequential limitation of use of a function or system, to wit, his neck and lower back" were based upon the physical examination "and my understanding of a serious injury as defined in § 5102(d) of the Insurance Law of the State of New York." ( see, Ceruti v Abernathy, 285 AD2d 386, 728 N.Y.S. 22d 445 [1st Dept. 2001]).

Plaintiff returned to work on a full time and unrestricted basis two and one-half months after the accident. This fact and the lack of contemporaneous medical evidence are fatal to any 90/180 claim asserted, as there is no arguable issue raised that any confinement or suspension ofemployment , even if it had extended into the statutory period, was medically determined to be necessary.

Accordingly, it is

ORDERED that defendants' motion be and hereby is granted and it is,

FURTHER ORDERED that the complaint herein be and hereby is dismissed pursuant to [*4]CPLR 3212 on the ground that the plaintiff has not sustained a serious injury.

This constitutes the decision and order of this court.

Dated: May_____, 2008________________________________

Bronx, New YorkHon. Howard H. Sherman

J.S.C.