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

The underlying accident occurred April 11, 2008 at 9:35 p.m. at the intersection of 103 Street and 129 Street, in Queens County.

The moving defendants assert that the plaintiff has not sustained a "serious injury" as a result of the accident.

In order to maintain an action for personal injury in an automobile case a plaintiff must establish, after the defendant has properly demonstrated that it is an issue, that the plaintiff has sustained a "serious injury" which is defined as follows:

"Serious Injury" 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 [*2]daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Insurance Law 5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" (Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350).

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230). Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Grossman v Wright, 268 AD2d 79). If the defendant's motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury (Gaddy v Eyler, 79 NY2d 955; Bryan v Brancato, 213 AD2d 577).

Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

The defendant relies on the report of Sasha Abdool, D.C., dated June 11, 2008 of the examination of Krishna Rampersad. The report is not notarized and the "signature" appears to be stamped.

There is an affirmation from Dr. Ravi Tikoo, M.D., a Board Certified Neurologist, dated May 13, 2009. Dr. Tikoo conducted a "neurological examination" of Krishna Rampersad. It was Dr. Tikoo's diagnosis that Krishna Rampersad had a "(1) History of Cervical Strain, (2) History of Lumbosacral Strain, and (3) History of Soft Tissue Injuries of the right shoulder." It was Dr. Tikoo's conclusion that this plaintiff "was essentially normal". "Despite his subjective complaints, there were no objective findings to substantiate these complaints." It was Dr. Tikoo's conclusion that this plaintiff was not neurologically disabled, and had not sustained a permanent injury.

There is an affirmation of Dr. Andrew B. Weiss, M.D., a Board Certified Orthopedic Surgeon, dated June 9, 2009 of his evaluation of Krishna Rampersad. Dr. Weiss found that Krishna Rampersad had a normal active range of motion of his cervical spine. His right shoulder had normal measurements but "there are subjective complaints of diffuse tenderness and pain at the extremes of motion in the right shoulder." There was a normal range of motion of the plaintiff's thoracolumbar spine. It was Dr. Weiss' diagnosis "1.Sprain cervicothoracic spine resolved by objective clinical criteria at the time of this evaluation - remembering prior involvement of the cervicothoracic spine in a prior motor vehicle accident.. 2. No clinical evidence for cervical, thoracic or lumbosacral radiculopathy by objective clinical criteria at the time of this evaluation." Dr. Weiss [*3]found no residuals related to the accident of April 11, 2008. "I find no clinical evidence for herniated discs in the cervical spine by objective clinical criteria at the time of this evaluation." Any bulging discs are normal and do not represent a pathological condition.

There is an affirmation dated August 30, 2009 of Dr. Richard A. Heiden, M.D., a Board Certified Radiologist. Dr. Heiden read the Thoracic Spine MRI of Krishna Rampersad taken at All Country Open MRI & Diagnostic Radiology on May 14, 2008. Dr. Heiden's conclusion were that the dehydradtion at T1-2, and Disc bulge at T2-3 are degenerative spondyloarthropahy, which is "wear and tear". These findings are degenerative and unrelated to the accident. There is no post-traumatic changes to the thoracic spine. The plaintiff's degenerative disease is a longstanding chronic one consistent with the plaintiff's age.

Here the defendant has come forward with sufficient evidence to support the claim that the plaintiff has not sustained a "serious injury" requiring the plaintiff to demonstrate that there is reason to believe that he has sustained a "serious injury" through medical testimony (Gaddy v Eyler, supra).

The plaintiff submits an affirmation dated January 18, 2010 of Dr. Harold James, M.D. who operates under the name Health Makers. Dr. James examined the plaintiff on November 30, 2009 in relation to his accident of April 11, 2008.His opinion is based on his review of prior medical records as well as his review of the plaintiff's medical records kept by him concerning plaintiff's prior accident of May 20, 2006. Mr. James opined that the plaintiff sustained exacerbation of posterior disc herniations at C4/5, C5/6 and C6/7 and "new injuries of posterior disc bulge at T2/3 impinging upon the anterior aspect of the spinal canal." The caused "significant and permanent injuries" with regard to his range of motion to his cervical and thoracolumbar spine.

Dr. James first saw the plaintiff in regard to the instant accident on April 22, 2008. Dr. James who had previously seen the plaintiff with regard to a prior accident and he noted the plaintiff's physical condition. The plaintiff was a diabetic and had elevated cholesterol. He was not working at the time of his visit on April 22, 2008.

The plaintiff was advised to have MRIs, On May 13, 2008 he had MRIs of his cervical and spine at All County, LLC conducted by Dr. Richard J. Rizzuti, M.D. which revealed disc herniations at the C4/5, C5/6 and C6/7. Dr. James compared the MRI s taken on May 13, 2008 with those taken on June 15, 2006 and found that the plaintiff has suffered "exacerbation" of the herniations.

The plaintiff had another MRI on May 14, 2008 of his thoracic spine at All County, LLC conducted by Dr. Richard J. Rizzuti, M.D. which revealed a posterior disc bulge at T2/3 impinging upon the anterior aspect of his spinal canal.

On June 2, 2008 the plaintiff had a "neurological consultation" with Dr. Arik Hausknecht, M.D., and again on June 23, 2008 and July 21, 2008.

The plaintiff continued to see doctors and physical therapists at HealthMakers until October [*4]17, 2008 when his no-fault coverage was terminated, and because he had no private medical insurance he was unable to continue.

On November 30, 2009 the plaintiff again saw Dr. James because of "continued and persistent pain". Objective tests conducted by Dr. James revealed that he "decreased range of motion" in his cervical and lumbar spine.

It was Dr. James' medical opinion that the plaintiff's "quality of life has been significantly impaired" and that as a result of the accident on April 11, 2008 he has sustained "permanent injuries". That as of "January 24, 2007, Mr. Rampersad had normal and full range of motion" in his cervical and thoacolumbar spine. Dr, James stated that the plaintiff had sustained "a permanent consequential limitation of use of his cervical and thoracolumbar spine."

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 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.

The question presented as to the difference between the conflicting measurements of plaintiff's ability to move creates an issue of fact for the jury (Martinez v Pioneer Transportation Corp., 48 AD3d 306).

Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation (Baez v Rahamatali, 24 AD3d 256 aff'd 6 NY2d 868) Adiagnosis 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). Also, a finding by the treating physician that continued treatment would be merely palliative can be considered a sufficient explanation for cessation of treatment (Toure v Avis Rent A Car Systems, 98 NY2d 345; Turner-Brewster v Arce, 17 AD3d 189). Here the plaintiff was unable to continue with his medical care because he did not have the money to do so.

However the plaintiff has failed to demonstrate that he has a "medically determined" injury or impairment which has prevented him from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident. (Ayotte v Gervasio, 81 NY2d 1062; Johnson v Berger, 56 AD3d 725;Roman v Fast Lane Car Service, Inc., 46 AD3d 535). Most notably is the fact that the plaintiff was not working prior to the date of the instant accident. [*5]

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). The mere existence of a herniated disc even a tear in a tendon is not evidence of serious physical injury without other objective evidence (Sapienza v Ruggiero, 57 AD3d 643; Piperis v Wan, 49 AD3d 840). Merely referring to the plaintiff's "subjective quality of the plaintiff's pain does not fall within the objective definition of serious physical injury" (Saladino v Meury, 193 AD2d 727, see, Craft v Brantuk, 195 AD2d 438). Here, the plaintiff has demonstrated that he has sustained a "permanent loss of use" with regard to his thoracic and lumbar spine.

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). Once the question has been raised, in order for the plaintiff to sustain proof of permanency, he must demonstrate the existence of such injury through objective medical tests which demonstrate the duration and extent of the injuries alleged (Gobas v Dowigiallo, 287 AD2d 690).

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, 60 AD3d 992; Hoxha v McEachern, 42 AD3d 433; Barrett v Howland, 202 AD2d 383). This the plaintiff has demonstrated through the submitted medical affirmations.

Accordingly, the defendant's motion to dismiss is denied, except that the plaintiff has failed to demonstrate that he has a "medically determined" injury or impairment which has prevented his from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident.

So Ordered.

Dated:March 2, 2010

_________________________

Robert J. McDonald, J.S.C.