Upon the foregoing papers it is ordered that this motion is determined as follows:

The defendants move for an Order pursuant to CPLR 3212 for summary judgment upon the grounds that the plaintiff Wael Gouda did not suffer a "serious injury" as defined in Insurance Law §5102(d), and, therefore, the plaintiff's cause of action must be dismissed (Insurance Law §5104(a)).

This case arose from a motor vehicle accident on April 27, 2006 at 6:20 in the evening in the vicinity of Hempstead Turnpike 100 feet west of Greenway South, in the City of Hempstead, County of Nassau, State of New York.

The plaintiff's verified bill of particulars claim a panoply of injuries sustained as a result of the accident, which Dr. John Vlattas, M.D., the plaintiff's physician, in his affirmation dated February 5, 2009 under "Final Diagnoses" indicates are the result of the instant accident the plaintiff sustained: "(1.) Multilevel cervical disk derangement with C2-C3 and C3-C4 disk bulging, C4-C5, C5-C6, and C6-C7 posterior disk herniation, C5-C6 and C6-C7 central canal stenosis, with C5-C6 ventral cord impression, narrowing of the bilateral foramina at C4-C5, right C5-C6, and right C6-C7 foramina with a T3-T4 posterior right central herniation with mild disk dehydration and mild productive changes at C3-C4, C4-C5, and C6-C7 with left C6 radiculopathy. (2.) Thoracic strain/sprain with T3- & 4 disk hernation. (3) L4-L5and L5-S1 disk bulging with right L5 (S1) radiculopathy. (4) Posttraumatic myofascial pain syndrome. (5) Left shoulder impingement syndrome."

The defendants posit that the plaintiff did not sustain a "serious injury" as required to enable [*2]him to pursue the instant claim (Insurance Law §5105; see, Licari v Elliot, 57 NY2d 230).

The defendants rely on the pre-trial depositions, photographs, and medical affirmations of their examining physicians who find that the plaintiff is within normal limits.

Dr., Mark J. Zuckerman, M.D., a neurologist, examined the plaintiff on November 18, 2008 and issued his report. Dr. Zuckerman's report indicates that as a result of his examination it was his "IMPRESSION: 1. Cervical sprain - resolved. 2. Lumbar sprain p resolved. 3. There is no evidence of concussion or post concussion syndrome or posttraumatic headache or neurologic disorder. 4. There is no central nervous system dysfunction. 5. There is no evidence of cervical or lumbosacral radiculopathy on clinical examination. Complaints regarding shoulder derangement, if any, (which is not a current complaint) are deferred to any appropriate orthopedic consultation in necessary. Preexisting conditions: There is preexisting evidence of degenerative changes and disc desiccation I the cervical spine, which predates the injury and would have had to have been present prior to the accident. DISABILITY: There is no persistent neurologic disability or impairment."

Dr. Alan J. Zimmerman, M.D., an orthopedic surgeon, examined the plaintiff for the purpose of Orthopedic Independent Medical Evaluation on September 22, 2008 when he issued his opinion. Dr. Zimmerman indicated that the plaintiff's "PRESENT COMPLAINTS: The claimant presents today with complaints of neck and lower back pain." he found "CONCLUSION: The claimant has no disability. The cervical and lumbar MRI findings are all degenerative, pre-existing and not casually related as evident by the multiplicity of the levels involved. There is no clinical evidence of a radiculopathy."

The defendants point out that the plaintiff had been involved in a previous motor vehicle accident which allegedly occurred on June 27, 2001. It appears from a report dated July 9, 2001 by Dr. John S. Vlattas, M.D., that the plaintiff had sustained "persistent neck pain radiating to the shoulders, mid and low back pain radiating to the buttocks and occasional pain into the left arm and leg, as well as headaches. He has noted headaches, mostly frontal associated with decreased concentration, occasional blurred vision, dizziness which was especially pronounced a few days after the accident. He has noted left and right forearm pain which is somewhat lessening. He not increase in neck and low back pain with sneezing. He notes sitting and standing up out of a chair aggravates his low back pain and turning his head in any position aggravates his neck pain. He notes sleeping on his back tends to lessen his pain. He notes increase in low back pain with moving his bowels and sneezing."

The plaintiff submits the affirmation of Dr. John S. Vlattas, M.D., Board Certified in Physical Medicine and Rehabilitation, and Electrodiagnostic Medicine with a certificate in the subspecialty of Pain Medicine, dated February 5, 2009. Dr. Vlattas acknowledges the plaintiff's injuries prior to the date of the accident and unrelated carpal tunnel syndrome. It is Dr. Vlattas' prognosis that the plaintiff has sustained "a permanent residual loss of motion" and that "he will continue to have ongoing complaints of neck, mid and low back pain, radiating symptoms of the upper and lower limbs, and weakness of variable course in the future necessitating intermittent treatment" . [*3]

Defendant concedes that initially it is their burden to demonstrate that the plaintiff has not suffered a "serious injury" as that term is used in the Insurance Law §5102(d).

Serious injury means a personal injury which result 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 constitutes 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.

Under the "No Fault Law" in order to sustain an action for personal injury, a plaintiff must establish "serious injury" as that is defined in the New York State Insurance Law §5102(d) which should mean "significant" (Licari v Elliot, supra). In order to raise the issue the movant must show an absence of any material issue of fact which would demonstrate "serious injury" and the right to judgment as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320). In the instant case the movants have the burden of proving, by submitting competent evidence in admissible form, that the plaintiff has not suffered a "serious injury"(Lowe v Bennett, 122 AD2d 718 aff'd 69 NY2d 701). The defendant presented a prima facie case of entitlement to summary judgment through the presentation of an affirmed copy of a medical reports (Santanasatasio v Doe, 301 AD2d 511).

The plaintiff presented his physician's affirmation which demonstrates there is a reasonable question as to whether the plaintiff has sustained "serious injury". While there are conflicting affirmations and affidavits the plaintiff has established triable issues of fact as to whether as a result of the accident on April 27, 2006 he has sustained injury to his back which were causally related to the accident (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Meyer v Guido, 260 AD2d 556).

Accordingly, after considering the evidence in a light most favorable to the plaintiff the defendant's motion for summary judgment is denied. The defendant has failed to demonstrate that the plaintiff has not sustained a permanent loss of use, permanent limitation, significant limitation, or 90/180 days of curtailment of his activities (Tuna v Badendererde, 32 AD3d 574; see, Kelly v Media Services Corp., 304 AD2d 717).

Here the defendant has come forward with sufficient evidence to support her claim that the plaintiff has not sustained a "serious injury" (Gaddy v Eyler, 79 NY2d 955).

To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration (Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been 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 (Dufel v Green, 84 NY2d [*4]795). Upon examination of the papers and exhibits submitted this Court finds that the plaintiff has raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories.

A diagnosis of permanency having been sustained by the plaintiff obviates the need for further treatment and, therefore, there is no "gap" in treatment (Pommells v Perez, 4 NY3d 566). This particularly so in view of the allegation that the plaintiff stopped treatment because he was denied no fault coverage and could not afford to continue.

Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life (Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of "Permanency" is established by submission of a recent examination (Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828).

Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation (Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" (Gaddy v Eyler, 79 NY2d 955).

The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration (Dufel v Green, 84 NY2d 795; Fung v Uddin,___ AD3d ___ [2009 NY Slip Op 2560]; Hoxha v McEachern, 42 AD3d 433; Barrett v Howland, 202 AD2d 383).

Accordingly, the defendants' motion to dismiss the plaintiff's claim on the grounds that he has not sustained a "serious injury" is denied.

So Ordered.

Dated:May 1, 2009

_________________________

Robert J. McDonald, J.S.C.