Papers numbered 1 to 3 were read on this motion:Papers Numbered:Notice [*2]of Motion/Exhibits1

Affirmation in Opposition/Exhibits_________________2Reply Affirmations/Exhibits_______________________3__________________________ ______________________________________________

In this negligence action, defendant MIKHAIL YAMBOLSKY, pursuant to CPLR Rule 3212 (a), moves for summary judgment and dismissal of plaintiff ALIJE ARSLANI's complaint, on the grounds that plaintiff ARSLANI has not sustained a "serious injury" within the meaning of Insurance Law § 5102 (d). The instant action arose from a three-car motor vehicle accident that occurred on February 17, 2008, at the intersection of Avenue Y and Batchelder Street, Brooklyn, New York. Plaintiff CAKA, with her mother, plaintiff ARSLANI, in her car as a passenger, was stopped at a red light when struck in the rear by a motor vehicle owned by defendant STAHURSKI and driven by defendant FERRARA. Defendant FERRARA alleges that he was also stopped for a red light and struck in the rear by defendant YAMBOLSKY.

Defendant YAMBOLSKY'S instant motion is denied. The moving papers fail to sufficiently demonstrate defendant YAMBOLSKY's entitlement to summary judgment as a matter of law. The February 12, 2010 affirmation of defendant YAMBOLSKY's Independent Medical Examination (IME) orthopaedist, Dr. Eduardo V. Alvarez [exhibit I of motion] includes positive objective findings which raise triable issues of fact. Further, Dr. Alvarez, despite his objective findings that plaintiff ARSLANI sustained limited range of motion in the cervical spine, lumbar spine and right wrist, gives a bare conclusory opinion, at page 5 of his IME affirmed report, without any objective medical evidence that plaintiff ARSLANI had "pre-existing, age-related degenerative changes which may impact on current injuries."

Plaintiff ARLSANI, 70 years old at the time of the accident, was transported immediately after the February 17, 2008-accident to Coney Island Hospital, where she was treated and released. She continued to have medical, chiropractic and acupuncture treatment for her injuries. According to the verified bill of particulars [exhibit C of motion], among the injuries plaintiff ARSLANI sustained from the subject accident were: disc herniations of the cervical spine at C2-C3, C3-C4 and C4-C5; and, disc herniations of the lumbar spine at L4-L5 and L5-S1. Plaintiff ARSLANI claimed that her injuries were significant limitations of use of her body functions or systems and permanent consequential limitations of use of her body organs.

Dr. Alvarez, on behalf of defendant YAMBOLSKY, conducted his IME on February 12, 2010. He stated, at page 5 of his IME affirmed report:

Range of motion of the cervical spine was normal at 35

degrees of flexion/normal 45 degrees, at 35 degrees of extension/

normal 45 degrees, limited right and left lateral bending at 20 and

30 degrees respectively/normal 35 degrees and limited right rotation

at 30 degrees and left lateral rotation at 60 degrees/normal 70 degrees . . .

Range of motion of the lumbar spine was limited by pain at

60 degrees of flexion/normal 80 degrees, 10 degrees of extension/

normal 20 degrees, 35 degrees of right and left lateral bending/ [*3]

normal 45 degrees and 35 degrees of right and left lateral rotation/normal

45 degrees . . .

Range of motion of the right wrist . . . ulnar deviation limited at

20 degrees/normal 30 degrees.

Dr. Alvarez, at page 6 of his affirmed IME report, stated that "normal values of range of motion were based on Guides to the Evaluation of Permanent Impairment published by the American Medical Association, fifth edition."

Further, at page 6 of his affirmed IME report, under "Impression/Diagnosis," Dr. Alvarez found that plaintiff ARSLANI suffered sprains and strains that were clinically resolved. Moreover, Dr. Alvarez, at page 6 of his affirmed IME report, concluded in "Casual Relationship" that "[t]he above conditions are causally-related . . . There were no prior similar injuries . . . Treatment was related to these injuries . . . However, there were pre-existing, age-related degenerative changes which may impact on current injury." No objective findings were presented to explain how Dr. Alvarez got from "[t]here were no prior similar injuries" to "there were pre-existing, age-related degenerative changes which may impact on current injury."

Dr. Alvarez, despite a finding: of limited range of motion in flexion, extension, right and left lateral bending and limited right and left rotation of the cervical spine; of limited range of motion in flexion, extension, right and left lateral bending and limited right and left lateral rotation of the lumbar spine; and, of ulnar deviation in range of motion of the right wrist; in "Degree of Disability," in page 6 of his affirmed IME report, states, "[t]here is no objective evidence of any ongoing orthopedic disability noted following this examination within reasonable medical certainty."

It is clear that Dr. Alvarez's conclusions are not supported by the objective evidence. This raises triable questions of fact as to whether plaintiff ARSLANI sustained a "serious injury."

CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Fotiatis v Cambridge [*4]Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]).

Defendant YAMBOLSKY's IME physician, Dr. Alvarez raises triable issues of fact. Despite stating that various ranges of motions for plaintiff ARSLANI were normal, they were actually limited. Dr. Alvarez, with respect to plaintiff ARSLANI's cervical spine found: flexion was 35 degrees, but normal is 45 degrees; extension was 35 degrees, but normal is 45 degrees; right and left lateral bending was 20 and 30 degrees respectively, but normal is 35 degrees; and, right rotation was 30 degrees and left lateral rotation was 60 degrees, but normal is 70 degrees. Further, with respect to plaintiff ARSLANI's lumbar spine, Dr. Alvarez found: flexion was 60 degrees, but normal is 80 degrees; extension is 10 degrees, but normal is 20 degrees; right and left lateral bending was 35 degrees, but normal is 45 degrees; and, right and left lateral rotation was 35 degrees, but normal is 45 degrees. Last, Dr. Alvarez found that the ulnar deviation of the right wrist was 20 degrees, but normal was 30 degrees.

In Penoro v Firshing (70 AD3d 659 [2d Dept 2010]), the Court held that "defendant failed to make a prima facie showing that the plaintiff Lorraine Penoro . . . did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident" because

[t]he report of the defendant's examining orthopedist disclosed

that he found limitations in the ranges of motion of the cervical

and lumbar regions of the injured plaintiff's spine (see Powell v

Prego, 59 AD3d 417, 419 [2d Dept 2009]; Norme v Ajons, 57 AD3d

749 [2d Dept 2008]; Wright v AAA Constr. Servs., Inc., 49 AD3d 531,

532 [2d Dept 2008]; Umar v Ohrnberger, 46 AD3d 531, 532 [2d

Dept 2007]; Bentivegna v Stein, 42 AD3d 555 [2d Dept 2007]).

(See Borras v Lewis, 79 AD3d 1084, 1085 [2d Dept 2010]; Iannello v Vazquez, 78 AD3d 1121 [2d Dept 2010]; Barrington-Stotsky v Robinson, 70 AD3d 990 [2d Dept 2010]; Bengaly v Singh, 68 AD3d 1030, 1031 [2d Dept 2009]).

Dr. Alvarez's conclusion that plaintiff's ARSLANI's "conditions are causally-related . . . There were no prior similar injuries . . . Treatment was related to these injuries . . . However, there were pre-existing, age-related degenerative changes which may impact on current injury" lacks probative value. Dr. Alvarez never explains what these "pre-existing, age-related degenerative changes which may impact on current injury" are. The Appellate Division Second Department, in Powell v Prego at 419, faced with a similar conclusory statement by an IME [*5]physician, as in the instant action, held that "[t]he bare conclusory opinion of the defendant's orthopedist that the [d]ecreased range of motion is due to degenerative changes that are pre-existing' was without probative value."

"Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the plaintiff's opposition papers." (Chun Ok Kim v ORourke, 70 AD3d 995 [2d Dept 2010]). (See Torres v Torrano, 79 AD3d 1124 [2d Dept 2010]; Borras v Lewis, supra; Iannello v Vazquez, supra; Barrington-Stotsky v Robinson, supra; Penoro v Firshing, supra; Bengaly v Singh, supra; Powell v Prego, supra).

Therefore, defendant YAMBOLSKY's motion for summary judgment and dismissal of plaintiff ARSLANI's complaint is denied.

Accordingly,it is

ORDERED, that the motion of defendant MIKHAIL YAMBOLSKY, for summary judgment and dismissal of plaintiff ALIJE ARSLANI's complaint, pursuant to CPLR Rule 3212 (a), on the grounds that plaintiff ARSLANI has not sustained a "serious injury" within the meaning of Insurance Law § 5102 (d), is denied.

This constitutes the Decision and Order of the Court.

ENTER

_________________________________

HON. ARTHUR M. SCHACK

J. S. C.