This is a personal injury action in which plaintiff, TANESHA ORRIDGE, seeks to recover damages for injuries she allegedly sustained as a result of a motor vehicle accident that occurred on July 23, 2008, on 125th Street between Lexington Avenue and Third Avenue, New York County, New York. The plaintiff commenced this action by filing of a summons and complaint on September 2, 2009. Issue was joined by service of the defendants' verified answer on or about October 23, 2009. [*2]

The defendants now move for an order pursuant to CPLR 3212 granting summary judgment and dismissing the plaintiff's complaint on the ground that the injuries claimed by the plaintiff fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.

In support of the motion, the defendants submit an affidavit from counsel; 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. Gregory Mantalbano, a board certified orthopedic surgeon and the affirmed radiology reports of Dr. David A. Fisher with regard to MRI studies of the plaintiff's left knee, cervical spine and lumbar spine; medical records from the emergency room at Harlem Hospital Center; medical records from ASJS Medical, PLLC; medical records of Dr. A. Shusterman, and medical records from Westchester Ambulatory Surgery Center.

In her verified Bill of Particulars, the plaintiff, age 29, states that as a result of the accident she allegedly sustained a meniscal tear of the left knee requiring arthroscopic surgery and disc bulges at C2-C3, C4-C5, C5-C6, L4-L5 and L5-S1. Plaintiff claims that she was confined to bed for a period of approximately two days following the accident and was confined to her home for approximately two weeks. The plaintiff states that she was incapacitated from employment from July 24, 2008 until September 19, 2008.

The plaintiff was examined by Dr. Montalbano on February 25, 2011, approximately two and a half years following the accident. In his objective examination, Dr. Montalbano found the plaintiff had certain limitations of range of motion in the cervical spine, left knee and right knee but no limitations of range of motion of the lumbar spine. After reviewing the plaintiff's medical records including the operative report regarding the left knee, Dr. Montalbano found that plaintiff did not sustain a permanent or substantial injury to the left knee. He also states that despite the diminished range of motion that the plaintiff did not sustain a substantial or permanent injury to the cervical or lumbar spine. Dr. Montalbano concludes that his clinical examination shows no abnormal objective findings and that the plaintiff has fully recovered from the sprain/strain which occurred as a result of the accident.

In his affirmed reports, Dr. Fisher, a board certified radiologist, states that based upon his review of the plaintiff's MRI studies taken on August 15, 2008, three weeks after the accident, the left knee MRI was normal with no evidence of a [*3]meniscal tear or ligament injury. Dr. Fisher states that the cervical spine MRI also was normal with no evidence of a recent traumatic or causally related injury to the cervical spine. His review of the MRI of the lumbar spine showed no evidence of herniation or significant annular bulge.

In her examination before trial, taken on December 1, 2010, the plaintiff testified that as a result of the accident she injured her head, neck, lower back and left knee. She was removed from the scene of the accident in an ambulance and taken to Harlem Hospital emergency room where she was discharged the same day. The x-rays taken in the hospital were negative for fractures. The following day she began physical therapy treatment with ASJS Medical. Subsequently, she treated at Englinton Physical Therapy until January 2009. She was told that her MRIS indicated that she had three bulging discs in her neck one bulging disc in her back and a torn meniscus of te left knee. On August 7, 2009, as she was still experiencing knee pain, the plaintiff underwent arthroscopic surgery on her left knee. She testified that she had further physical rehabilitation in May 2010. At the time of the accident she was a peace officer at CUNY. She returned to work six to eight weeks after the accident. She stated she still has pain in the left knee and lower back when she runs.

Defendants' counsel contends that the affirmed medical reports of Drs. Montalbano and Fisher are sufficient to establish, prima facie, that the plaintiff 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, who was not confined to bed or home for more than a two months after the accident, did not sustain 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.

In opposition, plaintiff's attorney, Stuart K. Gechlik, Esq., submits an affidavit from the plaintiff dated July 20, 2011; records of the emergency room at Harlem Hospital; records from ASJS Medical, PLLC,; radiological reports from Drs. Losik and Shapiro; medical records from Englinton Medical P.C., an affirmed report from Dr. A. Shusterman; affirmed medical reports from Dr. Dov Berkowitz; and an operative report from Dr. Struhl with regard to the plaintiff's arthroscopic surgery of the left knee.

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 [1982]).

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 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). 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 [1992]; Zuckerman v. City of New York, 49 NY2d 557[1980]; Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).

Here, the proof submitted by the defendants, including the affirmed medical reports of Drs. Montalbano and Fisher were sufficient to meet their prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler,79 NY2d 955 [1992]). Although Dr. Montalbano did find limitations of range of motion in the plaintiff's left knee and cervical spine, he fully explained that the limitations were not causally connected to the accident in question but rather, were caused by a degenerative condition and that there were no objective orthopedic findings which would provide the basis for the displayed limitations or which would indicate any disability, impairment, or limitation resulting from the accident (see Perl v Meher, 74 AD3d 930 [2d Dept. 2010]; Park v Shaikh, 82 ADd 1066 [2d Dept. 2011]; Gonzales v Fiallo, 47 AD3d 760 [2d Dept. 2008]; [*4]cf. Burns v. Stranger, 31 AD3d 360 [2d Dept. 2006]).

In opposition, the proof submitted by plaintiff is insufficient to rebut defendant's prima facie showing, as it fails to contain objective medical evidence sufficient to raise a triable issue of fact regarding her claims of serious injury.

The plaintiff initially sought treatment with Dr. Shusterman on August 4, 2008. Dr. Shusterman examined the plaintiff and found diminished range of motion on the lumbosacral spine, cervical spine and left knee. However, the range of motion limitations referred to were not quantified or compared to normal. Dr. Shusterman did not set forth any objective testing he did in order to arrive at that conclusion (see Fiorillo v Arriaza, 52 AD3d 465 [2d Dept. 2008]). The first time Dr. Shusterman lists range of motion limitations was only in percentage terms and was based upon his examination of December 9, 2008 which was four months after the accident. Dr. Shusterman last saw the plaintiff in November 2008. He concludes that the plaintiff sustained significant and permanent injuries as a result of the accident. In June 2011, the plaintiff was examined by her orthopedic surgeon Dr. Struhl. In his affirmed report he states that the range of motion of the plaintiff's left knee in June 2011 is from 0-135 degrees with 140 degrees being normal. He states that her injury is permanent as there was loss of cartilege that will not regrow.

Although both Dr. Shusterman and Dr. Struhl concluded that the plaintiff sustained permanent injury, Dr. Shusterman did not provide contemporaneous or recent range of motion findings and Dr. Struhl only found a 5 degree limitation of range of motion in the left knee post surgery (see Lewars v Transit Facility Mgt. Corp., 84 AD3d 1176 [2d Dept. 2011]; Resek v Morreale, 74 AD3d 1043 [2d Dept. 2010]; Byrd v. J.R.R. Limo, 61 AD3d 801 [2d Dept. 2009]). Further, although the plaintiff underwent arthroscopic surgery of the left knee, "evidence of a torn meniscus is insufficient to raise a triable issue of fact under the permanent consequential limitation of use and the significant limitation of use categories of Insurance Law § 5102(d) absent objective proof of the extent and duration of the alleged physical limitations resulting from the injury" (Bamundo v Fiero, 2011 NY Slip Op 7386 [2d Dept. 2011]). In addition, the plaintiff did not submit medical findings as to recent limitations of range of motion of the cervical or lumbosacral spines.

Lastly, plaintiff has not presented competent medical evidence sufficient to create issues of fact as to whether she has suffered a "serious injury" under the " 90/180" category set forth in Insurance Law § 5102(d) as she went back to work [*5]approximately two months after the accident (see Sham v. B & P Chimney Cleaning & Repair Co., Inc., 71 AD3d 978 [2d Dept. 2010]).

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

ORDERED, that the defendants' motion for an order granting summary judgment dismissing plaintiff's complaint is granted.

Dated: November 22, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.