In this action, plaintiff Innocent Moise (Moise) was a passenger in the defendant New York City Transit Authority's (NYCTA) bus when the bus driven by defendant Christopher Robinson was struck by a taxi cab driven by defendant James Daniell, on Nostrand Avenue at the intersection of Clarkson Avenue in Brooklyn, on January 16, 2001.

The NYCTA moves for summary judgment pursuant to CPLR §3211 and §3212 on the ground that plaintiff did not sustain a serious injury as required by New York Insurance Law § 5102(d).

The movant relies on the affirmed reports of the orthopedic examination of Dr. Joseph L. Paul (Dr. Paul), the neuropsychological examination of Dr. Frank R. Maurio (Dr. Maurio), the review of the plaintiff's MRI exam by radiologist Dr. Sheldon P. Feit (Dr. Feit) and the plaintiff'sdeposition and 50-h hearing testimony.

Dr. Paul's independent orthopedic exam conducted on September 7, 2001 lists objective range of motion tests performed and compared the plaintiff's results with normal range of motion and made findings, that plaintiff had all normal degrees of movement to the cervical spine, lumbar spine and left hand and left third finger. Dr. Paul [*2]reviewed the MRI of Moise's cervical and lumbar spine dated 2/2/01 and a narrative report of Dr. Anetole Barkan dated 1/26/01. Dr. Paul's impressions were that plaintiff had a "resolved sprain of the cervical and lumbar spine" and a "post crash injury to left third finger" and concluded that the claimant "has no orthopedic disability" and that she is "...able to perform all of her activities of daily living consistent with her age" and finding that Moise had resolved sprains of the neck and back and

that she had no orthopedic disability.

Dr. Maurio conducted an independent neuropsychological examination of plaintiff on June 3, 2003. After reviewing reports including the MRI examinations of the lumbar and cervical spine, Dr. Maurio concluded that :

"...there is no evidence of permanency as it relates to the

claimed injury. It is in the opinion of this examiner

that today's findings are non consistent with neurofocal

deficits relating to a suspected head trauma. Rather these

findings are suggestive of either advanced progressive senile

dementia as evidenced from the significant impairment noted

on all areas tested, or a psychiatric condition i.e. conversion

reaction disorder/ malingering."

Dr. Feit conducted an independent radiological review on December 11, 2007 of the MRI which was conducted two weeks after the accident of February 2, 2001. His impression states that there are:

1. Bulging discs identified at C4-5, C5-6 and C6-7 levels.

2. Degenerative spondylosis.

3. Associated herniation at the C5-6 level.

Dr. Feit concludes that the findings are "not posttraumatic", not related to the accident and are "degenerative in nature".

A examination of the plaintiff was conducted on April 6, 2001 pursuant to GML §50-h. Plaintiff testified that she was a self-employed baby sitter and earned $195 a week at the time of the incident. She also stated she was out of work for three months. Plaintiff also complained of pain in her lower back and knees and that she could not bend her knee. Plaintiff additionally testified at a deposition on December 7, 2007. As to her [*3]employment, she stated that at the time of the accident she cleaned for friends as needed. In reference to her injuries, she testified that she feels pain when it is cold, that she has pain in her right knee, back and right shoulder and that she could not stand up so she cannot work in a factory. As to her confinement, she testified that she was confined to her home for an unspecific time period and that she could not remember if she was confined to her bed. To maintain an action for personal injury, a plaintiff must establish that he or she has sustained a "serious injury" under Insurance Law § 5102 [d]:

Serious injury' means a personal injury which

results in . . . 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".

Whether plaintiff sustained a "serious injury" presents a question of law for the Court to determine first. (Licari v Elliott, 57 NY2d 230 [1982]). Such determination occurs after defendant initially makes a prima facie showing that plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff. (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002]).

Based on the defendants' submissions, the Court finds that defendants by submission of the three doctors reports and reference to the plaintiff's testimony have met their initial burden of making a prima facie showing that plaintiff did not sustain a serious injury (Gaddy v Eyler, 79 NY2d 955 [1992]).

The burden now shifts to plaintiff to come forward with sufficient evidence to support her claim of "serious injury" or to raise a triable issue of fact with respect thereto. (Gaddy, 79 NY2d at 957). In opposition, plaintiff relies on an attorney's affirmation from Jeffrey J. Schwartz, Esq. and an affirmed report of Dr. Anatole Barkan dated October 22, 2008.

The Court notes that an attorney's affirmation on a motion for summary judgment is not competent to raise triable issues of fact. ( Zuckerman v City of New York, 49 NY2d 557, [1980], Olan v Farrell Lines, 64 NY2d 1092 [1985], Warrington v Ryder Truck Rental, Inc., 35 AD3d 455 (2nd Dept. [2000], Herbert Stahl, et al., v Stralberg, et al., 287 AD2d 613 (2nd Dept)[2001]), Caramanica v State Farm Fire & Cas. Co., 110 AD2d 869 (2nd Dept. [1985]). [*4]

The attorney's affirmation asserts that Dr. Barkan's recent re-examination of the Plaintiff shows that the MRI confirmed herniated discs are still causing the Plaintiff objective limitation of motion and loss of range and function.

A review of Dr. Barkan's affirmation indicates that it does not provide any objective tests of limitation of the plaintiff's range of motion and function. Instead, it concludes, without any objective basis, that the plaintiff's deficits and functional limitations are caused by the herniations shown on the MRI and that they are directly related to the trauma received from the accident.

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 the body part. (Toure v Avis Rent A Car Systems, Inc., 98 NY2d at 353). In order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of plaintiff's loss of range of motion should be used to substantiate a claim of serious injury. (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 353). At oral argument when the Court inquired whether the doctor gave the plaintiff any range of motion tests, the attorney responded that he believed the doctor meant to incorporate these tests into his report. However, none are attached to plaintiff's opposition papers or referred to in Dr. Barkan's report.

Dr. Barkan's affirmation also fails to describe the particular activities that the plaintiff was unable to perform. Even if the Court were to credit Dr. Barkan's report, evidence of herniating and budging discs do not constitute a "serious injury". (Pazmino v Universal Distrib., 45 AD3d 554 [2nd Dept. 2007]), Albano v Onolfo, 36 AD3d 728 [2nd Dept.]). Subjective complaints of the plaintiff alone are not sufficient to establish serious injury. (Dufel v Green, 84 NY2d 795 [1985], Lopez v Senatore, 65 NY2d 1017 [1985]).

As to the second branch of plaintiffs opposition to the summary judgment motion that asserts serious and permanent cervical and lumbar conditions which restricted plaintiff's life and lifestyle for 90 out of 180 days after the accident, the plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence, in addition to medical opinions, of the extent or degree of the limitation and its duration (Beckett v Conte, 176 AD2d 774 [2d Dept 1991]), Burnett v Miller, 255 AD2d 541 [ 2d Dept 1998]).Even though plaintiff claimed that she was out of work for approximately three (3) months, there is insufficient medical proof connecting her absence from work to her accident related injuries. Dr. Barkan's affirmation (in addition to failing to include objective findings) is totally devoid of any mention that plaintiff was required to be absent from work for any period of time due to accident related injuries. Thus, plaintiff failed to set forth any evidence raising a genuine question of fact to defeat the motion for summary judgment.

Accordingly, the motion for summary judgment of the defendants is granted and the Clerk of the Court is directed to dismiss the complaint with prejudice. [*5]

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

January 22, 2009