Upon the foregoing papers, the Defendants, TEAM MASSAPEQUA, INC. d/b/a DOMINOS PIZZA, TIMOTHY M. LANAHAN and JUDITH A. LANAHAN's motions and Cross-motion seeking an order granting summary judgment pursuant to CPLR § 3212 and dismissal of the complaint of the Plaintiff, FRANCES AMBROSELLI, on the grounds that the Plaintiff's injuries do not satisfy the "serious injury" threshold requirement of Insurance Law § 5102 (d) is determined as hereinafter provided.

The Plaintiff commenced this lawsuit by filing a Summons and Complaint wherein the Plaintiff claimed personal injuries resulting from a motor vehicle accident, which occurred on June 26, 2007 on East Shore Drive, south of its intersection with South Merrick Road in Massapequa, New York. Issue was then joined by service of the Defendants', Timothy M. Lanahan and Judith A. Lanahan's answer.

At the time of the accident, the Defendant, Timothy M. Lanahan, was working as a pizza deliveryman for Domino's Pizza. He was operating a 2003 Nissan, which his mother, the Defendant, Judith A. Lanahan, owned. The accident occurred when Mr. Lanahan was making a U-turn and struck the Plaintiff, Frances Ambroselli's vehicle.

At the scene of the accident, the Plaintiff refused medical attention and told responding officers that she was "fine" and then began walking home from the scene of the accident. See Examination Before Trial of Frances Ambroselli p. 31-32 annexed to the Defendant, Team Massapequa, Inc.'s Notice of Motion as Exhibit C.

The Plaintiff claims that as a result of the subject accident she sustained the following injuries: (1) L2, L3 right para-central disc herniation with thecal sac deformity; (2) Posterior disc bulging at L2/L3 and L5/S1 with bilateral foraminal extension and impingement at these levels; (3) [*2]Exacerbation of prior left hemilaminectomy at L5; (4) Anterolisthesis at L3 on L4 and L4 on L5 with bilateral foraminal impingement at these levels secondary to anterolisthesis and diffused posterior disc bulging; (5) the need for epidural steroid injections and a lumber radiculopathy; (6) aggravation, exacerbation and/or precipitation of prior dormant lower back pain; and (7) pain, limitation of motion, swelling, tenderness of the affected surrounding areas, including aggravation, exacerbation and/or precipitation of the same. See Plaintiff's Bill of Particulars ¶ 5 annexed to the Defendant Lanahans' Notice of Motion as Exhibit D.

The Plaintiff contends that the above injuries, due to the subject motor vehicle accident, qualify as "serious injuries," pursuant to Article 51 of the New York State Insurance Law. Under this law, "serious injury" is defined as: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of a fetus; (6) permanent loss of use of body organ or member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury of a non-permanent nature that prevents the injured person from performing substantially all of the material acts which constitute his usual and customary daily activity for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury. See McKinney's Consolidated Laws of New York, Insurance Law § 5102 (d).

Based upon a plain reading of the papers submitted herein, the Plaintiff is not claiming that her injuries fall within the first five categories of "serious injury": to wit, death; dismemberment; significant disfigurement; a fracture; or loss of a fetus. See Plaintiff's Affirmation in Opposition at ¶ 33. Thus, this Court will restrict its analysis to the remaining four categories of Insurance Law § 5102 (d); to wit, permanent loss of use of a body organ, member, function or system; 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.

The Defendants argue, however, that the Plaintiff's injuries do not meet any definition of "serious injury" as defined in Insurance Law § 5102 (d) and therefore move for summary judgment pursuant to CPLR § 3212 seeking the dismissal of the Plaintiff's complaint in its entirety. The Defendants also contend that the Plaintiff's claimed alleged injuries were pre-existing and not caused by the subject accident. They also argue that the Plaintiff's injuries are subjective, non-permanent, minor, and speculative, and for these reasons recovery is precluded pursuant to Insurance Law § 5102 (d).

In moving for summary judgment, a defendant must make a prima facie showing that the plaintiff did not sustain a "serious injury" within the meaning of the statute. Once this is established, the burden then shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a "serious injury" was sustained. See Pommels v. Perez, 4 NY3d 566 (2005); see also Grossman v. Wright, 268 AD2d 79, 84 (2nd Dept. 2000).

Even where there is ample objective proof of the plaintiff's injury, the Court of Appeals held in Pommels v. Perez, supra, that certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of the plaintiff's complaint. Specifically, in Pommels v. Perez, the Court of Appeals held that additional contributing factors, such as a gap in treatment, an intervening medical problem, or a pre-existing condition, would interrupt the chain [*3]of causation between the accident and the claimed injury. Pommels v. Perez,4 NY3d 566 (2005), supra.

Additionally, when a defendant's medical expert is rendering an opinion with respect to the plaintiff's range of motion, the medical expert must specify the objective tests upon which the stated medical opinions are based and must compare any findings to those ranges of motion considered normal for the particular body part. Browdame v. Candura, 25 AD3d 747 (2nd Dept. 2006); Mondi v. Keahan, 32 AD3d 506 (2nd Dept. 2006); Qu v. Doshna, 12 AD3d 578 (2nd Dept. 2004).

On July 20, 2007, the Plaintiff sought medical treatment from Dr. Michael DiGiovanna, her prior treating doctor, for any alleged injuries she may have sustained due to this accident. See Transcript of the Examination Before Trial of Frances Ambroselli at p. 33 annexed to the Defendant, Team Massapequa, Inc.'s Notice of Motion as Exhibit C. The Plaintiff complained of lower back pain radiating down both buttocks. At an August 17, 2007 visit, it is noted that an MRI showed disc bulges at L2/3, L3/4, L4/5, L5/S1 with neural foraminal impingement. Dr. DiGiovanna recommended physical therapy with a follow-up exam in four to six weeks. On September 4, 2007, the Plaintiff again sought treatment from Dr. DiGiovanna. He conducted an EMG which revealed evidence of bilateral radiculopathy. See Dr. DiGiovanna's records annexed to the Defendant, Lanahans' Notice of Motion as Exhibit F, F1 and F2.

On September 20, 2007, the Plaintiff began treatment with Dr. Peter Kechejian. The Plaintiff began a series of epidural steroid injections and complained of lower back pain. As of Dr. Kechejian's last notes on January 14, 2009, he was going to schedule the Plaintiff for a multilevel right-sided lumbar faced radiofrequency lesioning procedure under fluoroscopy and intravenous sedation. See Dr. Kechejian's Report annexed to the Plaintiff's Affirmation in Opposition as Exhibit H.

Most recently, on January 20, 2010, the Plaintiff saw a neurologist, Dr. Itzhak C. Haimovic. Dr. Haimovic performed range of motion testing and made the following observations: "Range of motion revealed on hip forward flexion, 50 degrees to the left, 60 degrees to the right (normal range 100%). On rotation of the right foot, 40 degrees interior and 50 degrees exterior. Rotation of left foot revealed 35% interior and 25% exterior (normal range 40% interior and 50% exterior normal). On the spine lumbar region, flexion extension was 38% (normal range 90%). On lateral flexion, 5 degrees to the left 10 degrees to the right (normal range 20%)". See Dr. Haimovic's duly sworn report annexed to the Plaintiff's Affirmation in Opposition as Exhibit I.

Dr. Haimovic, in his report, states that the Plaintiff's neurological condition was unstable to begin with but, as a result of the accident, she developed marked exacerbation of her pain, and irritation and inflammation of the left L5 nerve root because of pre-existing spine instability. He states there was a new disc herniation at L2-L3, which was playing a role in the Plaintiff's new symptoms. Dr. Haimovic stated that he believed that the accident which occurred on June 26, 2007 was the direct, competent cause for the Plaintiff's severe, intractable pain in her left leg, as well as her continued need for medication, epidural and caudal injections, and radiofrequency. See Dr. Haimovic's duly sworn report annexed to the Plaintiff's Affirmation in Opposition as Exhibit I.

Based on the conclusions of the various examining doctors, the Plaintiff asserts that due to the subject accident, she sustained a "serious injury" as defined by Insurance Law § 5102 (d).

The Defendants argue that the Plaintiff's injuries do not meet any definition of "serious injury" as defined in any part of Insurance Law § 5102 (d) and therefore move for summary judgment pursuant to CPLR § 3212 seeking the dismissal of the Plaintiff's complaint in its entirety.

The Defendants argue that the Plaintiff's injuries were pre-existing and note that she injured [*4]her lower back in a prior accident on March 1, 1996, while working at Stop & Shop. As a result of that accident and its injuries, the Defendant notes that the Plaintiff underwent a left L4-L5 laminectomy and disectomy. See Examination Before Trial of Frances Ambroselli at pp. 9-11, 13 annexed to the Defendant, Team Massapequa, Inc.'s Notice of Motion as Exhibit C.

The Defendants also point out that in August 2002, the Plaintiff underwent a laparoscopic Lap-Band surgery. Further, the Defendant notes that a 2002 report of the Laparoscopy Center at North Shore University Hospital states that the Plaintiff's obesity related medical conditions include chronic back pain. Additionally, in 1997, Dr. DiGiovanna diagnosed the Plaintiff with herniated lumbar disc disease and noted that the Plaintiff suffers from low back pain radiating to the left hip. See Medical Reports annexed to Defendant, Lanahans' Notice of Motion as Exhibit F3, F4, F5 and F8.

The Plaintiff's MRI films were examined by the Defendant's medical expert, Dr. Steven L. Mendelsohn, a radiologist. Dr. Mendelsohn reviewed films from August 7, 2007 and May 18, 2009. He noted extensive degenerative findings throughout the Plaintiff's lumbar spine, including desiccation and mild to moderate narrowing of the neural foramina at all levels of the spine. Dr. Mendelsohn noted other degenerative findings and concluded that there was no evidence of any trauma related to the subject accident. See Reports of Dr. Steven L. Mendelsohn attached to the Defendant, Team Massapequa, Inc.'s Notice of Motion as Exhibit F.

The August 7, 2007 MRI film was also reviewed by Dr. A. Robert Tantleff. Dr. Tantleff, a radiologist, notes degenerative bulges and disc degeneration. He also points out that there was no evidence of recent trauma. See Report of Dr. A. Robert Tantleff attached to the Defendant, Lanahans' Notice of Motion as Exhibit H.

The Plaintiff was also examined by Dr. Maria Audrie DeJesus and Dr. Jacquelin Emmanuel. Dr. DeJesus conducted a neurological examination of the Plaintiff on June 30, 2009 and concluded that there was no neurological disability. See Reports of Dr. Maria Audrie DeJesus attached to the Defendant, Team Massapequa, Inc.'s Notice of Motion as Exhibit D. Dr. Emmanuel conducted an orthopedic examination of the Plaintiff. She noted that flexion was carried out to 70 degrees, which is the same range of motion that was exhibited in the medical records that predate the subject accident. She also concluded that the Plaintiff had resolved the sprain/strain of the lumbar spine. See Reports of Dr. Jacquelin Emmanuel attached to the Defendant, Team Massapequa, Inc.'s Notice of Motion as Exhibit E.

Applying the aforesaid criteria to the reports of the various doctors, this Court finds that the moving Defendants have established a prima facie case that the Plaintiff failed to sustain a "serious injury" as defined by New York State Insurance Law § 5102 (d).

With respect to the categories of a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member, this Court notes that although the Plaintiff's range of motion is limited and less than normal, various doctors noted that this was not due to the subject accident, but rather, due to a pre-existing medical condition. Thus, the burden now shifts to the Plaintiff to demonstrate a triable issue of fact with respect to the existence of a "serious injury." Licari v. Elliot, 57 NY2d 230 (1982), supra.

In order for a plaintiff to satisfy the statutory "serious injury" threshold, the legislature requires objective proof of a plaintiff's injury. The Court of Appeals in Toure v. Avis Rent-a-Car Systems, 98 NY2d 345 (2002), stated that a plaintiff's proof of injury must be supported by objective medical evidence paired with the doctor's observations during the physical examination of the plaintiff. [*5]

In opposition to the Defendants' instant applications, the Plaintiff has submitted medical records from her physician, Dr. Michael DiGiovanna, and from Dr. Itzhak C. Haimovic. From these reports, it is clear that the Plaintiff does have a limitation in movement and that she does have back problems, which did pre-exist the accident and are degenerative in nature. However, it is not made clear that these limitations are in fact due to the subject accident. Dr. Haimovic notes that as a result of the accident he believes that the Plaintiff developed irritation and inflammation of the L5 nerve root, but that this was because of the pre-existing spine instability. See Report of Dr. Itzhak C. Haimovic attached to the Plaintiff's Affirmation in Opposition as Exhibit I.

When examining medical evidence offered by a plaintiff on a threshold motion, the court must ensure that the evidence is objective in nature and that a plaintiff's subjective claims as to pain or limitations of motion are sustained by verified objective medical findings. Grossman v. Wright, 268 AD2d 79 (2nd Dept 2000).

Further, in addition to providing medical proof contemporaneous with the subject accident, the plaintiff must also provide competent medical evidence containing verified objective findings based upon a recent examination wherein the expert must provide an opinion as to the significance of the injury. Kauderer v. Penta, 261 AD2d 365 (2nd Dept 1999); Constantinou v. Surinder, 8 AD3d 323 (2nd Dept. 2004); Brown v. Tairi Hacking Corp., 23 AD3d 323 (2nd Dept. 2005).

Applying the foregoing principles to the medical evidence proffered by the Plaintiff, the Court finds that the Plaintiff has not successfully raised a triable issue of fact.

To meet the threshold regarding the significant limitation of use of a body function or system or permanent consequential limitation category, the law requires that the limitation be more than minor, mild, or slight, and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. Gaddy v. Euler, 79 NY2d 955 (1992), supra; Licari v. Elliot, 57 NY2d 230 (1982), supra; Scheer v. Koubeck, 70 NY2d 678 (1987).

The medical reports proffered as evidence by the Plaintiff fail to provide an objective indication of a permanent consequential limitation that was caused by the subject accident and was not due to a pre-existing condition.

When a claim is raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, then, in order to prove the extent or degree of the physical limitation, an expert's designation of a numeric percentage of the plaintiff's loss of range of motion is acceptable. See Toure v. Avis Rent-a- Car Systems, Inc., 98 NY2d 345 (2002), supra. In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided that: (1) the evaluation has an objective basis, and (2) the evaluation compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system. See id.

To prevail under the "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" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102 (d)) "which would have caused the alleged limitations on the plaintiff's daily activities." Monk v. Dupius, 287 AD2d 187, 191 (3rd Dept. 2001). A limitation of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment." Licari v. Elliot, supra at 236. In this case, the Plaintiff has not [*6]provided any information regarding a curtailment of her usual activities, nor does she provide any objective medical proof with regard to this requirement.

In the instant matter, the Defendants did succeed in making a prima facie showing that the Plaintiff did not sustain a "serious injury" pursuant to the Insurance Law. Further, the Plaintiff did not successfully counter this showing with sufficient medical evidence to demonstrate the existence of material issues of fact that she has in fact sustained a "serious injury" pursuant to the aforementioned insurance law.

Accordingly, based on the foregoing, the Motions and Cross-motion by the Defendants for summary judgment dismissing the claims against them must be GRANTED.

All matters not decided herein are hereby DENIED.

This decision constitutes the decision and order of the court

DATED:Mineola, New York

June 15, 2010

______________________________

Hon. Randy Sue Marber, J.S.C.

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