Defendants move for summary judgment dismissing the plaintiff's action on the grounds that she did not suffer a "serious injury" as defined by § 5102(d) of the NYS Insurance Law. Plaintiff opposes the motion. For the reasons set forth herein, the defendants' motion is granted and the complaint is dismissed.

Plaintiff claims she sustained personal injuries as a result of an automobile accident on November 30, 2005 at the intersection of Belmont Avenue and Essex Street in Kings County. Plaintiff claims she was the operator of a vehicle traveling on Belmont Avenue when it was involved in a collision with a vehicle owned and operated by defendants Serge Desilus and Maria Benitez respectively. Plaintiff was driven from the scene to Interfaith Hospital by her husband, where she was treated and released. She later sought treatment from Dr. Hamid Lalani, Dr. Leo Batash, and Dr. Vladimir Shur. She subsequently commenced the within negligence action against defendants. Examinations Before Trial and Independent Medical Examinations of the plaintiff have been conducted.

Defendants contend the complaint must be dismissed because plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102(d) which provides: [*2]

"Serious injury" means a personal injury which results

in death; dismemberment; significant disfigurement; a

fracture; loss of a fetus; permanent loss of use of a body

organ, member, function or system; permanent con-

sequential 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.

As former Chief Justice Judith Kaye explained in Pommelis v Perez, 4 NY3d 566, 570 [2005], "No fault thus provides a compromise: prompt payment for basic economic loss to injured persons regardless of fault, in exchange for limitation on litigation to cases involving serious injury...There is...abuse of the No-Fault Law in failing to separate "serious injury" cases, which may proceed in court, from the mountains of other auto accident cases, which may not."

Defendants had Dr. Robert Michaels, an orthopedic surgeon, perform an Independent Medical Examination on June 25, 2009, to evaluate plaintiff's condition. See affirmation of Dr. Michaels annexed to defendants' moving papers as Exhibit D.

In his affirmation, Dr. Michaels noted that plaintiff was presently complaining only of left knee pain. He noted that physical examination of the plaintiff revealed a normal gait. Examination of the left shoulder showed a full range of motion. There was no tenderness, swelling ecchymosis or erythema present. The impingement sign was negative, as were apprehension, drop arm test and O'Brien tests. There was no rotator cuff weakness. Forward elevation was 170 degrees (170 normal), external rotation 80 degrees (80 normal), internal rotation 100 degrees (100 normal), abduction 170 degrees (170 normal).

Dr. Michaels states that examination of the left knee showed a normal range of motion. There was no instability or tenderness, swelling, effusion or erythema. There was a negative anterior drawer sign, Lachman's, McMurray's, valgus instability, quad atrophy, post drawer sign, pivot shift, tight lateral retinaculum, patella facet tenderness, and varus instability. Negative crepitus was also noted. Flexion was 140 degrees (140 normal).

Dr. Michaels states that examination of the thoracolumbar spine was completely normal, with a normal range of motion.

Dr. Michaels opined, based on his examination, and a review of the medical records, that plaintiff had a resolved left shoulder sprain, a resolved left knee sprain and a resolved lumbar sprain. He states that there are no objective orthopedic deficits, disability or permanency. Dr. Michael's describes the plaintiff's prognosis as "good."

Defendants also note that plaintiff was involved in two subsequent accidents, on September 21, 2007 and in April of 2008. Defendants point out that plaintiff's experts [*3]must account for the injuries which were caused by the subsequent accidents.

Plaintiff opposes the motion. Plaintiff provides an affirmation (Exhibit D) from Dr. Hamid Lalani, dated November 23, 2009. Dr. Lalani states that he first saw plaintiff on December 1, 2005, when she visited his office the day after the accident, complaining of severe left knee, left shoulder and lower back pain. He is an internist. He states he found "tenderness over the medial joint lane (sic) of the left knee and rotator cuff muscle of the left shoulder", with "apparent swelling of the left knee." Examination of the left shoulder revealed "tenderness over the anterior-lateral aspect with maximum over the supraspinatus tendon insertion." He says he also found a restricted range of motion, with Apley Scratch positive on right internal and external rotation, indicating possible shoulder derangement/impingement.

Dr. Lalani performed range of motion testing on December 1, 2005 with regard to plaintiff's left shoulder, flexion/elevation 130 degrees (180 normal), abduction 120 degrees (180 normal), adduction 25 degrees (50 normal), internal rotation 60 degrees (90 normal), external rotation 70 degrees (90 normal).

He states that examination of the left knee revealed restricted range of motion and crepitation, with pain and tenderness over the patellar joint line and over the mediolateral aspect. Range of motion testing on the left knee showed flexion 100 degrees (130 normal), extension 5 degrees (15 normal).

Examination of the lower back revealed related tenderness over the lumbosacral spine with spasm on the left side and restricted range of motion.

Dr Lalani averred that any pre-existing degenerative condition that plaintiff might have had prior to the accident was aggravated or exacerbated by the accident, and had not manifested itself to plaintiff before the accident. On the date of the accident, plaintiff was 40 years old.

Dr. Lalani says that after the examination, plaintiff began a course of physical therapy at his office three times a week. He also referred her for an MRI scan.

Dr. Lalani says he continued to treat plaintiff until March 7, 2006, when she had reached maximum medical improvement [In addition, though it is not noted in this affirmation, it is noted that plaintiff's no fault benefits had been terminated]. His diagnosis at the time he terminated treatment was oblique tear of the medial meniscus of the left knee at the junction of the posterior horn and body contacting the inferior space; joint effusion of the left knee, sprain and strain of the left shoulder, and internal derangement of the left shoulder, all as the result of the accident. He avers, with a reasonable degree of medical certainty, that the injuries to her left shoulder and left knee were caused by the accident of November 30, 2005.

The affirmation of Dr. Batash (Exhibit C), dated December 2, 2009, states that plaintiff first visited his office on August 12, 2008, complaining of left knee and left shoulder pain. He says he found "tenderness over the medial joint lane (sic) of the left knee and rotator cuff muscle of the left shoulder, with apparent swelling of the left knee." This is exactly what Dr. Lalani says in his affirmation, word for word, including typos.

Dr. Batash states that examination of plaintiff's left knee on August 12, 2008, revealed restricted range of motion, and crepitation "with pain and tenderness over the patellar joint line, over the mediolateral aspect, the medial joint line and also over the [*4]lateral joint lane (sic), which decreased range of motion." McMurray's test was positive, Lachman's test was positive, and there was posterior capsule swelling.

Examination of the left shoulder revealed tenderness over the anterior aspect of the shoulder and over the lateral aspect of the shoulder, enhanced with external and internal rotation and restricted ranges of motion.

He states that range of motion testing on the left knee showed flexion 115 degrees (150 normal), extension -5 degrees (0 normal).

Dr. Batash also avers that any pre-existing degenerative condition that plaintiff might have had prior to the accident was aggravated or exacerbated by the accident, and had not manifested itself to plaintiff before the accident. He also notes that plaintiff never re-injured her left knee or left shoulder subsequent to the 2005 accident. Dr. Batash referred plaintiff for a second MRI and an x-ray of her left shoulder. Plaintiff began a second course of physical therapy. He also referred her to Dr. Vladimir Shur, an orthopedic surgeon.

The affirmation of Dr. Shur (Exhibit E), an orthopedist, affirms to the truth of his annexed medical records from an examination of plaintiff's left knee on August 15, 2007. That examination found positive McMurray's sign and Lachman's test. He states that it was an ACL injury, and most likely a meniscal injury. He states that plaintiff could benefit from surgery.

The affirmation of Dr. Jeffrey Chess (Exhibit F), a radiologist, affirms to the truth of the report of the MRI he conducted on plaintiff's left knee on December 16, 2005. The impression in the report is that there is an oblique tear of the medial meniscus at the junction of the posterior horn and body contacting the interior surface, as well as a small knee joint effusion.

The affirmation of Dr. Robert Scott Schepp (Exhibit G), a radiologist, dated January 22, 2009, affirms to the truth of the reports of the MRIs he reviewed of the plaintiff's left knee taken on December 17, 2008, (three years post accident) as well as the films of the plaintiff's left shoulder taken on December 1, 2005. The impression in the report on the left knee is that a "linear meniscal tear is identified extending into the inferior surface of the posterior horn of the medial meniscus"', "a slight suprapatellar effusion is identified extending into the joint space," and "slight medial join space narrowing is identified." The impression in the report on the left shoulder is "slight medial joint space narrowing" and "no gross osseous abnormality."

Before addressing the substance of the motion at hand, the court must first address plaintiff's contention that the motion is untimely. As defendant notes, plaintiff filed a Note of Issue in this matter prior to the Independent Medical Examination of the plaintiff, and before plaintiff had provided all of the requested authorizations. Defendants moved to vacate the Note of Issue by motion returnable on July 8, 2009. The motion was adjourned by the court to October 1, 2009. However, plaintiff's IME had meanwhile taken place. As such, the Motion to vacate the Note of Issue was withdrawn on October 1, 2009, by which date the instant motion had already been filed. Under the circumstances, defendants have demonstrated good cause for their delay.

Where a motion for summary judgment is predicated on a determination of "serious injury" the moving party has the initial burden of submitting sufficient evidentiary proof in admissible form to warrant a finding that the plaintiff has not [*5]suffered a "serious injury". Lowe v Bennett, 122 AD2d 728 [1st Dept], affirmed 69 NY2d 701 [1986].

In the instant matter, defendants' evidence, comprised of expert's affirmations, supports the conclusion that plaintiff did not sustain a "serious" injury, and thus defendants have met their prima facie burden of proof.

The affirmation of Dr. Michaels notes that plaintiff is presently complaining only of left knee pain. He also notes that his physical examination of the plaintiff revealed a normal gait, and that examination of the plaintiff's left shoulder showed a full range of motion. He found no tenderness, swelling, ecchymosis or erythema present. The impingement sign was negative as were apprehension, drop arm test and O'Brien tests. There was no rotator cuff weakness. Dr. Michaels states examination of the left knee showed a normal range of motion. There was no instability or tenderness, swelling, effusion or erythema. There was a negative anterior drawer sign, Lachman's, McMurray's, valgus instability, quad atrophy, post drawer sign, pivot shift, tight lateral retinaculum, patella facet tenderness, and varus instability. Negative crepitus was also noted. Dr. Michaels states that examination of the thoracolumbar spine was completely normal, with a normal range of motion.

Dr. Michaels concludes that plaintiff has a resolved left shoulder sprain, a resolved left knee sprain and a resolved lumbar sprain, and that there are no objective orthopedic deficits, disability or permanency. Dr. Michaels describes the plaintiff's prognosis as "good."

Defendants also note that plaintiff was involved in two subsequent workplace accidents on September 21, 2007 and in April of 2008. Defendants complain that plaintiff's experts must account for the subsequent accidents. Defendants annex, as Exhibit E, the reports of Dr. Alan Dayan, an orthopedist, and Dr. John Lyons, a radiologist, with regards to injuries she allegedly suffered in the work-related accident of September 21, 2007. The report of Dr. Dayan does not mention the prior automobile (herein) accident, and notes "right knee chondromalacia and synovitis, as well as back sprain". The report of Dr. Lyons notes he examined the films of the plaintiff's May 30, 2008, MRI and found disc bulges at L1-2, L2-3, L3-4, L4-5, L5-S1.

In addition, the Court notes the plaintiff's deposition testimony where she admitted to missing only a week and a half of work (p 19) after the automobile accident on November 30, 2005.

The Plaintiff then has the burden of overcoming the motion. Grossman v. Wright 288 AD2d 79 [2nd Dept 2000]. She has failed to meet this burden. Plaintiff has not alleged death, dismemberment or loss of a fetus. Nor has she alleged a significant disfigurement or a fracture. Further, she does not claim a permanent and total loss of any body part.

The plaintiff has also failed to proffer competent medical evidence that she sustained 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. [*6]

At her deposition, the plaintiff acknowledged that she missed less than 90 days of work as a result of the subject motor vehicle accident; specifically, she acknowledged that she missed a week and a half from work. [EBT p 19]. Morris v Edmond, 48 AD3d 432 [2nd Dept 2008]; McIntosh v O'Brien, 2010 NY Slip Op 115 [2nd Dept]. For her to establish this prong of the statute, her doctor would have had to inform her that she could not return to work - that is the prerequisite for a medically determined injury. See Sainte v. Ho, 274 Ad2d 569 [2nd Dept 2000]; Welcome v. Diab, 273 AD2d 377 [2nd Dept 2000].

As such, plaintiff cannot claim a medically determined injury or impairment which prevented her from performing substantially all of the material acts which constituted her customary daily activities for not less than 90 days during the 180 days immediately following the accident. The important element in establishing injury under the 90/180 day category is that the injury be medically determined. Abrahamson v Premier Car Rental of Smithtown, 261 AD2d 562 [2nd Dept 1999]; Kaplan v Gak, 259 AD2d 763 [2nd Dept 1999]. Absent some objective proof of disability to perform the activities of daily living for 90 out of 180 days following an accident, there is no showing of a serious injury from mere allegation. Rum v Pam Transport, Inc., 250 AD2d 751 [2nd Dept 1998]; Harney v Tombstone Pizza Corp, 279 AD2d 609 [2nd Dept 2001]. Proof is needed concerning what activities were curtailed and how they were curtailed. See, Monette v Keller, 281 AD2d 523 [2nd Dept 2001]; Candia v Omonia Cab Corp., 6 AD3d 641 [2nd Dept 2004]; Watt v Eastern Investigative Bureau, Inc., 273 AD2d 226 [2nd Dept 2000].

As such, plaintiff has not offered any substantive proof that there was any curtailment in her activities which was the result of the accident. In fact, she testified at her EBT that she was driving within two weeks following the accident. See, Nelson v Distant, 308 AD2d 338 [1st Dept 2003]; Abrahamson v Premier Car Rental of Smithtown, supra.

Plaintiff contends that she suffered a permanent consequential limitation of use of a body organ or member, as well as a significant limitation of use of a body function or system. However, her physician's affirmations are insufficient to raise a triable issue as to whether plaintiff has in fact sustained a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system, within the meaning of Insurance Law §5102 (d). See Lopez v Senatore 65 NY2d 1017 [1985].

The affirmation of Dr. Batash notes that he first examined plaintiff in reference to the instant accident on August 12, 2008, almost three years after the accident. Interestingly, the medical records annexed by defendant concerning the treatment plaintiff received in regard to the work-related accident of September 21, 2007 reveal that, at the time, plaintiff was at the time already treating with Dr. Batash in regard to the 2007 accident. In fact, Dr. Batash's affirmation makes no reference whatsoever to this accident. Prior to the intervening 2007 accident, plaintiff had not treated with any doctor following the auto accident since March 7, 2006, but after having begun treatments with Dr. Batash after her 2007 accident, plaintiff, who had stopped treatment with Dr. Lalani, both because she had plateaued and because her no fault benefits had been terminated, decided to seek treatment from Dr. Batash for her earlier (2005) [*7]injuries as well. Strangely, Dr. Batash's affirmation fails to mention this.

Plaintiff's EBT (p 75) is similarly evasive:

Q: When did you go to Dr. Batash?

A: September of that year.

Q: Who referred you to Dr. Batash?

A: I knew him already, that's why I came in and spoke to him and made an appointment.

In addition, Dr. Batash's affirmation notes no quantified range of motion test results for plaintiff's left shoulder. The only range of motion tests relating to the left shoulder are from Dr. Lalani on December 1, 2005. In fact, the last time Dr. Lalani examined the plaintiff was March 7, 2006. Dr. Batash's report merely noted that based upon a recent examination, the range of motion in the plaintiff's left shoulder was decreased. However, Dr. Batash did not set forth the objective testing he did in order to arrive at that conclusion. See Keith v Duval, 71 AD3d 1093 [2nd Dept 2010]; Knopf v Sinetar, 69 AD3d 809 [2nd Dept 2010]; Spence v Mikelberg, 66 AD3d 765 [2nd Dept 2009]; Sapienza v Ruggiero, 57 AD3d 643, 644 [2nd Dept 2008]. Furthermore, the extent of any limitation in the plaintiff's left shoulder cannot be determined because Dr. Batash failed to quantify that limitation, or provide a qualitative assessment of her left shoulder in his report. See Toure v Avis Rent A Car Sys., 98 NY2d at 345, 350 [2002]; Acosta v Alexandre, 70 AD3d 735 [2nd Dept 2010]; Giannini v Cruz, 67 AD3d 638, 639 [2nd Dept 2009]; Taylor v Flaherty, 65 AD3d 1328 [2nd dept 2009]; Barnett v Smith, 64 AD3d 669, 671 [2nd Dept 2009]. Further, Dr. Batash makes reference in his affirmation to visits by the plaintiff on dates for which he provides no medical records. Casas v Montero, 48 AD3d 728,729 [2nd Dept 2008]; Wall v Kings Row, 9 AD3d 406 [2nd Dept 2004].

In addition, it is noted that Dr. Batash, the only treating doctor to see plaintiff in the aftermath of the two subsequent work-related accidents, fails to address the question of whether either of those accidents, at least one of which Dr. Batash was surely aware of, because he was treating plaintiff for injuries stemming from it at the time he began treating her for the instant accident, contributed to the plaintiff's current condition. Even in the presence of proof of a herniated disc and reduced range of motion, summary judgment may be appropriate "when additional contributory factors interrupt the chain of causation between the accident and claimed injury — such as a gap in treatment, an intervening medical problem or a preexisting condition." Pommells v Perez, supra at 572. The only manner in which plaintiff's counsel deals with this issue is to baldly assert that the subsequent accidents did not impact the parts of the plaintiff's body which are involved in this case. However, there is no evidence to support those assertions, medical or otherwise. A doctor's assertion of a causal relationship premised upon an incomplete history of a plaintiff's relevant prior injuries is conclusory and insufficient to raise a triable issue of fact. Sky v Tabs, 57 AD3d 235, [1st Dept 2008]. Once a defendant has presented evidence of an intervening injury, even in the form of an admission made at a deposition, it is incumbent upon the plaintiff to present proof to meet the defendant's asserted lack of causation. Figueroa v. Castle, 34 AD3d 353 [1st Dept 2006]; Beceril v Sol Cab Corp., 50 AD3d261 [1st Dept 2008]. In [*8]these circumstances, it was incumbent upon plaintiff to present proof addressing the asserted lack of causation, and surely, if such proof exists, Dr. Batash was privy to it. Donadio v Doukhnych, 55 AD3d 532 [2nd Dept 2008]. Seck v. Minigreen Hacking Corp., 53 AD3d 608 [2nd Dept 2008]; Silla v. Mohammad, 52 AD3d 681 [2nd Dept 2008]; Munoz v Koyfman, 44 AD3d 914 [2nd Dept 2006], Mooney v Edwards, 12 AD3d 424 [2nd Dept 2004]. Plaintiff has not submitted competent proof that addresses the defendants' claim of an intervening accident which breaks the causal connection between the accident and the injuries plaintiff's doctor claims are the result of the accident. As such, the affirmation of the plaintiff's doctor is insufficient to raise a triable issue of fact. Byum v. Waltuch, 50 AD3d 939 [2nd Dept 2008].

There is no basis for concluding that the plaintiff's alleged physical limitations and continuing pain are attributable to the subject accident rather than to the plaintiff's subsequent accidents. See Jimenez v Rojas, 26 AD3d 256, 257 [1st Dept 2006]. Where, as here, there is persuasive evidence that the plaintiff's alleged pain and injuries are related to an intervening cause, plaintiff has the burden of coming forward with evidence addressing the defendants' claimed lack of causation. In the absence of such evidence, the defendants are entitled to summary dismissal of the complaint. The plaintiff's doctors' failure even to mention, let alone explain, why they ruled out the intervening accidents as the cause of plaintiff's knee and shoulder injuries renders their opinion that they were caused by this accident speculative. See Gorden v Tibulcio, 50 AD3d 460, 464 [1st Dept 2008]. See also Jimenez v Rojas, supra at 257.

The motion to dismiss plaintiff's complaint for failure to meet the serious injury threshold in Insurance Law § 5102(d) is granted.

The foregoing constitutes the Decision and Order of this Court.

Dated: Brooklyn, New York

May 27, 2010

Hon. Debra Silber, A.J.S.C.