The following papers numbered 1 to 8 read on this motion by defendant Marie L. Auguste (hereafter "Auguste") and cross-motion by defendants Catherine S. Russo and Thomas J. Russo (hereafter "Russo")both for summary judgment pursuant to CPLR 3212 dismissing the complaint on the ground that the plaintiff did not sustain a "serious injury" pursuant to Insurance Law 5102:

Papers Numbered

Notice of Motion-Affidavits-Exhibits................1 - 2

Defendant Russo's Notice of Cross-Motion............3 - 4

Affirmation in Opposition-Affidavits-Exhibits.......5 - 6

Reply Affirmation...................................7 - 8

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This is a personal injury action in which plaintiff, EUNIDE AUGUSTE, seeks to recover damages for injuries sustained by her as a result of a motor vehicle accident that occurred on July 26, 2008, at approximately 2:50 p.m., at the intersection of Franklin [*2]Avenue and Plane Avenue in Nassau County, New York.

At the time of the accident, plaintiff was a front seat passenger in the vehicle owned and operated by defendant Marie L. August who is the plaintiff's sister.

Defendant Marie L. Auguste now moves for an order pursuant to CPLR 3212(b), granting summary judgment to the defendant and dismissing plaintiff's complaint on the ground that the plaintiff did not suffer a serious injury as defined by Insurance Law§ 5102. The Russo defendants cross-move for the same relief and rely on the papers filed by co-defendant Marie L. Auguste.

In support of the motion, the defendant submits an affidavit from counsel, Arthur Gruner, Esq.; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial; the affirmed medical report of Dr. Daniel J. Feuer; and two affirmed medical reports of Dr. Audrey Eisenstadt, a radiologist.

In her verified Bill of Particulars dated November 6, 2009, the plaintiff, age 60, states that as a result of the accident she sustained inter alia, posterior disc bulge at T12-L1 with impingement; posterior disc bulges at C4-C5 and at C5-6 with impingement; and permanent decreased range of motion of the cervical, lumbar and thoracic spines. The plaintiff contends that as a result of said injuries she was confined to bed for two days following the accident and confined to her home for one week following the accident.

The Bill of Particulars states that she sustained a serious injury as defined in Insurance law §5102(d) in that she sustained significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation or 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 nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute her 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 plaintiff was examined on December 29, 2009 by Dr. Feuer, a Board Certified neurologist, retained by the defendants. Dr. Feuer conducted a neurological examination of the plaintiff, then a fifty-nine year old women. She complained of "recurrent neck and low back pain." Upon examination of the plaintiff's cervical spine and lumbar spine, using a goniometer, Dr. Feuer determined that her range of motion was normal. He that the plaintiff was without spasm and her condition was non-tender. Dr. Feuer's impression was that plaintiff's neurological examination was basically normal. "Motor, reflex, and sensory examinations [*3]are within normal limits. She does not offer any radicular or neuropathic complaints. MRI testing fails to document spinal cord or nerve root impingement." She was not under the care of a doctor, and it was his opinion that the plaintiff was "neurologically stable to engage in full active employment as well as the full activities of daily living without restriction."

The defendant submits two affirmations dated August 23, 2010 by Dr. Audrey Eisenstadt, M.D., a Board Certified Radiologist. One affirmation related to her study of the Cervical MRI taken on October 2, 2008. It was Dr. Eisenstadt's opinion that her "review of the cervical spine MRI examination was entirely normal. There are no changes seen to the osseous, ligamentous, or intervertebral disc structures. No post-traumatic abnormalities are seen."

The second affirmation relates to Dr. Eisenstadt's study of an MRI taken October 2, 2008 of the plaintiff's thoracic spine. It was Dr. Eisenstadt's conclusion that her "[r]eview of the thoracic spine MRI examination performed two months and one week following the accident reveals no evidence of post-traumatic injury. There is degenerative disease seen with osteophyte formation and endplate signal change at the T8-9 and T23-L1 levels. These bony productive changes are greater than six months in origin and typical in appearance for degenerative disc disease. They have no traumatic basis or causal relationship to the incident. Disc desiccation is seen throughout the thoracic spine. This drying out of disc material is greater than three months in origin. Its widespread nature clearly indicates that lack of a focal process causally related to the incident. Bulging in seen at the T12-L1 level. Dr Eisenstadt states that the disc bulging has no traumatic basis. It is degenerative in origin. Her impression is that there was "degenerative disc disease throughout the thoracic spine most significantly noted with osteophyte formation at the T8-9 and T12-L1 intervertebral disc levels."

In her examination before trial, taken on April 9, 2010, plaintiff states that at the time of the accident she was employed as a housekeeper at a nursing home known as Garden Care Center. She stated that as a result of the accident she missed one week of work. She was still employed full time at the nursing home at the time of the EBT. After the accident she left the scene in an ambulance and was taken to the emergency room at Winthrop Hospital. She complained of pain in her neck and her back. X-rays were taken in the emergency room and the plaintiff was discharged. Subsequently she underwent an MRI of her back and neck. One week after the accident she began physical therapy with a chiropractor and continued for approximately six months.

Counsel contends that the plaintiff's deposition as well as the medical reports are sufficient to establish, prima facie, [*4]that the defendant has not sustained a permanent loss of a body organ, member, function or system; that she has not sustained a permanent consequential limitation of a body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the plaintiff has not sustained a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff, for not less than 90 days during the immediate one hundred days following the occurrence, from performing substantially all of her usual daily activities.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006]). "[A] defendant can establish that [a] plaintiff's injuries are not serious within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). 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 (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955).

This court finds, based upon the affirmed medical reports of Dr. Feuer and Dr. Eisenstadt, as well as the deposition testimony of the plaintiff, in which she testified that she returned to work full time one week after the accident, that the defendant has submitted legally admissible evidence, sufficient to meet her prima facie burden of establishing entitlement to summary judgment based upon a finding that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d]; (Gaddy v Eyler, 79 NY2d 955).

Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v. Eyler, 79 NY2d 955; Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]).

In opposition to the motion, the plaintiff submits an affidavit from counsel, Dennis Feliciano, Esq.; an affidavit from plaintiff, Eunide Auguste; the affirmed medical report of Dr. [*5]Visram; and the affirmed medical report of Dr. Rizzuti, a radiologist who reviewed the plaintiff's MRI studies.

In her affidavit dated October 20, 2010, the plaintiff states that after the accident she was treated by Dr. Visram with respect to the pain in her back and neck. She treated with him for about six months, however, after that she could no longer continue to receive treatments as her no fault benefits were cut off and she could not afford to pay on her own.

Dr. Visram states in his affirmed report that he first examined the plaintiff on August 22, 2008 and found limitation in her range of motion for her cervical and lumbar spines. He diagnosed the plaintiff as suffering from posterior disc bulges at C4-C5 and C5-C6 with impingement and posterior disc bulge at T12-L1 with impingement on the spinal canal. He found that her injuries and disc pathology were permanent in nature and directly and causally related to the motor vehicle accident of July 26, 2008 and that as a result she was partially disabled. Dr Visram examined the plaintiff a second time on September 10, 2010 and again found limitation in her range of motion for her cervical and lumbar spine. His diagnosis and prognosis was the same as in his first examination.

The plaintiff also submitted the affirmation of Dr. Rizzuti, a radiologist who reviewed the plaintiffs MRI and found that she had posterior disc bulge at T12-L1 and C4-C5 and C5-6, both impinging on the spinal canal.

This Court finds that the plaintiff raised a triable issue of fact by submitting the report from Dr. Visram and Dr. Rizzuti in admissible form attesting to the fact that the plaintiff had significant limitations in range of motion both contemporaneous to the accident and in a more recent examination and concluding that the plaintiff's limitations resulted from trauma causally related to the collision.

As such, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to her cervical and/or lumbar spine under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khavosov v Castillo, 2011 NY Slip Op 1442 [2d Dept. 2011]; Mahmood v Vicks, 2011 NY Slip Op 653 [2d Dept. 2011]; Compass v GAE Transp., Inc., 2010 NY Slip Op 9881 [2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]).

Although the defendant's radiologist opined that the disc bulges were caused by degeneration, the Second Department has recently held that even if the plaintiff's doctor does not specifically address the findings in the reports submitted by the defendants that the abnormalities in the tested areas were degenerative, rather than traumatic, the findings of the [*6]plaintiff's doctor that plaintiff's injuries were indeed traumatic and were causally related to the collision is sufficient as it implicitly addressed the defendants' contentions that the injuries were degenerative (see Fraser-Baptiste v New York City Transit Authority, 2011 NY Slip Op 1429 {2d Dept. 2011]; Harris v Boudart, 70 AD3d 643 [2d Dept. 2010]).

Further Dr. Visram states in his report that he conducted his own examination and therefore he did not rely entirely on Dr. Yentel's findings. While portions of Dr. Visram's affidavit must be disregarded because he relied on unsworn findings of Dr. Yentel (see Casiano v Zedan, 66 AD3d 730 [2d Dept. 2009]; McNeil v New York City Tr. Auth., 60 AD3d 1018 [2d Dept. 2009]), Dr. Visram found, on the basis of his own physical examination of the plaintiff, performed contemporaneously with the subject accident, and at the time of his most recent examination of the plaintiff, that she had a significantly decreased range of motion in her cervical and lumbar spines (see Austin v Dominguez, 79 AD3d 952 [2d Dept. 2010]).

In addition, the plaintiff adequately explained the gap in her treatment by submitting her own affidavit, saying that no-fault had stopped her benefits and she could not afford further treatment thereafter (see Abdelaziz v Fazel, 78 AD3d 1086 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010]; Domanas v. Delgado Travel Agency, Inc., 56 AD3d 717 [2d Dept. 2008]; Black v Robinson, 305 AD2d 438 [2d Dept. 2003]).

Accordingly, for the reasons set forth above, it is hereby

ORDERED, Defendants, respective motions seeking an order granting summary judgment dismissing plaintiffs' complaint must each therefore be denied.

Dated: March 3, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.