The underlying action involves an automobile accident which occurred July 27, 2004 in which the plaintiff was allegedly injured in an automobile accident at the intersection of 102nd Street and 35th Avenue, Queens County, New York.

The moving defendant asserts that the plaintiff has not sustained a "serious injury" as a result [*2]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)

In order to maintain an action for personal injury in an automobile case a plaintiff must establish that he has sustained a "serious injury" which is defined as follows:

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.

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, the existence of a "serious injury" 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).

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).

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.

Dr. Lisa Nason, M.D., a Board Certified Orthopedic Surgeon, submitted an affirmation dated May 24, 2010. Dr. Nason conducted an orthopedic evaluation of the plaintiff. The measurements were taken with a hand-held goniometer. Dr. Nason conducted an examination of the plaintiff's cervical spine, left shoulder, and lumbar spine all of which were normal. Dr. Nason stated that the "claimant is able to perform their normal occupation and perform activities of daily living without restrictions. There is no evidence of permanency or disability." [*3]

Dr. David L. Milbauer, M.D., a Radiologist, submitted an affirmation dated August 21, 2009. Dr. Milbauer reviewed the MRI study of this plaintiff's MRI of the left shoulder dated October 4, 2004. It was Dr. Milbauer's conclusion that "[t]he examination [of the MRI] demonstrates no specific findings to indicate that a traumatic injury to the left shoulder was sustained in the accident of July 27, 2004. The hypertrophic changes about the acromioclavicular joint and beneath the anterior acromion process and bony cystic change of the greater tuberosity of the humerus are degenerative and longstanding in nature, preexisting the accident of July 27, 2004.

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).

The plaintiff submits the affirmation of Dr. Oleg Fuzaylov, M.D. Board Certified in Physical Medicine and Rehabilitation, dated August 23, 2010, recites that Dr. Fuzaylov has seen the plaintiff on July 14, 2010 with a complaint related to his left shoulder. There is no representation made by Dr. Fuzaylov with regard to whether his determination as to the plaintiff's range of motion was made with a goniometer or any other measuring device. He did state that he reviewed an MRI taken October 7, 2004 and that his "clinical findings" were consistent with his "review" of the MRI.

The plaintiff submits the affirmation of Dr. Mehran Manouel, M.D., a Board Certified Orthopedist, dated August 26, 2010. Dr. Manouel states that he first examined the plaintiff on October 20, 2004 with complaints of neck and left shoulder pain. He found a "decrease in the range of motion of the cervical spine" and left shoulder "impingement" with a decreased range of motion. His review of the MRI showed "evidence of a full thickness rotator cuff tear". It was Dr. Manouel's opinion that "the Plaintiff sustained a limitation of use of his left shoulder muscles, ligaments, tendons and tissues surround left shoulder with permanency" and the injuries were causally related to the motor vehicle accident.

The plaintiff submits the affirmation of Dr. Clifford Beinart, M.D., a Board Certified Radiologist, dated August 25, 2010 who states that he supervised the MRI taken of the plaintiff's left shoulder on October 4, 2004 and it was his opinion that there was a "focal supraspinatus tear noted atr [sic] the level of insertion into the humeral head". Attached is the MRI report dated October 7, 2004 regarding the MRI taken October 4, 2004.

The plaintiff submits that when there is "conflicting medical reports" the question as to whether the plaintiff has sustained as serious injury is a triable issue of fact (Garcia v Long Island MTA, 2 AD3d 675). While that assertion is correct, the plaintiff has not submitted any conflicting report based on objective evidence of the amount of injury the plaintiff has sustained. There is no evidence provided as to extent and frequency of the plaintiff's treatment.

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 [*4]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 not raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories.

The plaintiff has failed to present conflicting measurements using an objective standard necessary to create an issue of fact for the jury (see, Martinez v Pioneer Transportation Corp., 48 AD3d 306).

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). The plaintiff must submit competent medical evidence that the injuries sustained rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (Vicers v Francis, 63 AD3d 1150; Roman v Fast Lane Car Service, Inc, 46 AD3d 535).

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 "restrictions in the range of motion of the cervical and lumbrosacral spine" is not evidence of serious physical injury without other objective evidence (see, 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).

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). [*5]

The plaintiff has failed to address the questions raised in the defendant's motion for summary judgment based on the allegation that the plaintiff has not sustained a "serious injury" as a result of the accident on July 27, 2004.

Accordingly the defendant's motion is granted.

So Ordered.

Dated: Long Island City, NY

December 3, 2010

______________________________

ROBERT J. MCDONALD

J.S.C.