The following papers numbered 1 to 24 were read on this motion by defendant, MICHAEL A. ZABOSKY, for an order pursuant to CPLR 3212 granting defendant summary judgment and dismissing the complaint of plaintiffs JORGE PALOMINO and GLORIA PALOMINO, on the ground that each plaintiff did not sustain a serious injury within the meaning of Insurance Law §§ 5102 and 5104; and the cross-motion by plaintiff on the counterclaim JORGE PALOMINO, dismissing the counterclaim and all cross-claims against him on the ground that plaintiff GLORIA PALOMINO did not sustain a serious injury:

Papers

Numbered

Defendant's Notice of Motion-Affirmations-Exhibits....1 - 7

Motion by Plaintiff on the Counterclaim...............8 - 13

Plaintiffs' Affirmation in Opposition................14 - 20

Plaintiffs' Affirmation in Reply.....................21 - 24

In this action for negligence, the plaintiffs, JORGE [*2]PALOMINO and GLORIA PALOMINO, seek to recover damages for personal injuries they each sustained as a result of a motor vehicle accident that occurred on June 5, 2010, on 31st Street and Astoria Boulevard in Astoria, Queens County, New York. Plaintiffs allege that they each sustained injuries when their vehicle, which was stopped at a red traffic signal after exiting the Grand Central Parkway at 31st Street, was struck in the rear by the vehicle owned and operated by defendant, Michael Zabosky.

This action was commenced by the plaintiffs by the filing of a summons and complaint on October 7, 2010. Issue was joined by service of defendant's verified answer with counterclaim against Jorge Palomino dated February 24, 2011. A reply to counterclaim was served by the plaintiff on the counterclaim on April 5, 2011. A note of issue was filed on November 5, 2012. This matter is presently on the calendar of the Trial Scheduling Part on October 8, 2013.

Defendant Zabosky now moves for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the complaint of plaintiffs Jorge Palomino and Gloria Palomino on the ground that each plaintiff did not suffer a serious injury as defined by Insurance Law § 5102. Plaintiff on the counterclaim, Jorge Palomino, submits a separate motion for summary judgment pursuant to CPLR 3212 dismissing the counterclaim and any and all cross-claims asserted against him on the ground that Gloria Palomino did not sustain a serious injury under Insurance Law § 5102(d). The instant motions were submitted on May 17, 2013 and reassigned to this court for decision on September 19, 2013.

In support of the motion, defendant submits an affirmation from counsel, Stephen Kusnetz, Esq; a copy of the pleadings; a copy of plaintiffs' verified bill of particulars; the affirmed medical reports of board certified neurologist, Chandra Sharma; orthopedist, Dr. Salvatore Corso; orthopedic surgeon, Dr. J. Serge Parisien; and copies of the transcripts of the examinations before trial of plaintiffs, Jorge Palomino and Gloria Palomino.

In her verified bill of particulars, plaintiff, Gloria Palomino states that as a result of the accident she sustained a disc herniation at C3-C4, L5-S1 and multilevel disc bulges at C4-C5, T12-L1, L1-L2, L2-L3, L3-L4, and L4 - L5. She states that she was partially incapacitated from her employment for four days.

Jorge claims to have sustained a supraspiantus tear of the right shoulder as well as herniations at C4-5, C5-6, L4-L5 and [*3]disc bulges at C6-7 and L5-S1.

Plaintiffs each contend that they sustained a serious injury as defined in Insurance Law § 5102(d) in that they sustained a permanent loss of use of a body organ, member, function or system; a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented each plaintiff from performing substantially all of the material acts which constitute his or 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.

Dr. Chandra M. Sharma performed an independent neurological examination of the plaintiffs on December 19, 2012. Dr. Sharma states that plaintiff Jorge Palomino related to her that on the date of the accident he felt pain in the neck, lower back and right shoulder. The day following the accident he went to the emergency room at New York Hospital where he was treated and released the same day. She reported that his present complaints were pain in the neck, lower back and right shoulder. Range of motion testing indicated no limitations of range of motion of the cervical spine and lumbar spine. Dr. Sharma states that Jorge has no neurological disability. She states that there will be no permanent neurological problems of a causally related nature.

Dr. Sharma examined Gloria Palomino on December 19, 2012. She told Dr. Sharma that she was a front seat passenger wearing a seat belt on June 5, 2010 when her vehicle was rear-ended at a red traffic signal. The plaintiff had pain to her neck, back, and head. She stated that she still has pain in the neck and back but it has improved. Gonioscopic range of motion testing revealed no limitations of range of motion of the cervical and lumbar spines. The doctor's diagnosis was cervical and lumbar sprain, resolved and normal neurological examination. She states that Gloria has no neurological disability and there are no neurological limitations to continuation of usual work and activities of daily living. She also states there will be no permanent neurological problems of a causally related nature.

Dr. J. Serge Parisien, an orthopedic surgeon examined Gloria on November 20, 2012. Range of motion testing performed by Dr. Parisien showed no limitations of range of motion of the cervical and lumbosacral spine. He states that Gloria presents with status post cervical, thoracic and lumbar sprain/strain, resolved. He states that based upon his examination "there is no objective evidence of disability." [*4]

Dr. Salvatore Corso, an orthopedist, examined both plaintiffs December 20, 2012. At the time of the evaluation, plaintiff Jorge Palomino, age 51 complained of pain in the neck and back. He reported being involved in a prior motor vehicle accident but did not remember what injuries were sustained in the prior accident. He stated he worked full time as a dietary aide. Dr. Corso performed objective and comparative range of motion testing and found that Jorge Palomino had no limitations of range of motion of the cervical spine and thoracolumbar spine. Dr. Corso stated that it is his impression that Jorge was status post cervical and lumbar strain, resolved. He states that based upon his examination the plaintiff has no evidence of an orthopedic disability.

Dr. Corso also examined plaintiff, Gloria Palomino, age 58, on December 20, 2012. She presented with pain to the neck and back. She reported that she was involved in a prior motor vehicle accident on March 16, 2006 which resulted in neck and back injuries. She was employed as a housekeeper at the time of the accident. Range of motion testing on the Gloria's cervical and thoracolumbar spines showed no limitations at all. Dr. Corso stated that Gloria was status post cervical and lumbar strain, resolved and showed no objective evidence of an orthopedic disability.

In his examination before trial, Jorge, a dietary aide at Mount Sinai Hospital stated that he was involved in an accident on June 5, 2010 at 7:00 a.m. He exited the Grand Central Parkway at 31st Street and his vehicle was struck in the rear while waiting at a red traffic signal. The day following the accident he was seen in the emergency room at New York Hospital Medical Center of Queens. At the hospital he made complaints of pain to his back and neck. He states that there was no time after the accident that he was confined to his house or bed and he stated that he lost no time from his job. Fifteen days after the accident he began a course of physical therapy with Dr. Islam for pain in his back, neck and right shoulder. He testified that he had a CAT scan in 2003 as he injured his back in a prior accident. He states that he still has pain in his right arm and neck and back. He stopped his treatment with Dr. Islam in 2011 because his no fault benefits were terminated.

Gloria Palomino testified at an examination before trial on October 10, 2012. She stated that on the date of the accident her husband was driving her to Mount Sinai Hospital where she works as a housekeeper. After the accident she was taken by ambulance to Mount Sinai where she was treated for pain in her back and neck. Approximately two weeks later she began physical therapy [*5]with Dr. Islam. She did not remember how long she treated with Dr. Islam before she stopped physical therapy. She has not been treated in over two years for her injuries. She still experiences pain in her back and neck. She stated that she had a prior motor vehicle accident in 2006 in which she injured her back and neck.

Defendant's counsel as well as counsel for plaintiff on the counterclaim contends that the medical reports of Drs. Sharma, Corso and Parisien as well as each plaintiff's deposition testimony stating that they returned to work within a week following the accident are sufficient to establish, prima facie, that each plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented each plaintiff from performing substantially all of the material acts which constitute his or 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.

In opposition, plaintiff's attorney, William Pager, Esq., submits his own affirmation as well as the affidavits of Jorge and Gloria Palomino, the affirmed medical report of Dr. Islam, and the unaffirmed records from Mount Sinai and Queens Hospital Center and other treating providers.

In his affidavit dated April 22, 2013, Jorge Palomino states that after the accident he was treated by Dr. Islam at Pinoy Medical Office. He complained of right shoulder pain, headaches, lower back pain and neck pain. He states that after many months of treatment with Dr. Islam he reached a plateau where continued therapy was not providing any significant additional benefit. He states that he continues to suffer pain everyday as a result of the accident and experiences numerous limitations in his daily activities. He states that he was involved in an accident in 2003 in which he sustained injuries to his back. He states that he had completely recovered from his prior accident by 2010.

Dr. Islam's affirmation with respect to Jorge states that he initially examined Jorge after the accident at which time he had headaches, neck pain, right shoulder pain and lower back pain. At that time he was diagnosed with cervical strain, lumbar strain and right shoulder internal derangement. On July 20 2010 functional range of motion testing revealed significantly limited range of motion of the cervical spine, right shoulder, left shoulder and lumbar spine. He reviewed the plaintiff's MRI reports which showed a tear of the supraspinatus tendon of the [*6]right shoulder and disc herniations of the cervical and lumbar spine. Jorge underwent physical therapy at Dr. Islam's office until such time that it was determined that the patient had plateaued after months pf physical therapy. Dr. Islam personally reexamined the plaintiff on April 10, 2013 and found that there was still decreased range of motion of the right shoulder, lumbar spine and cervical spine. He states that he believes that at this time significant improvements are not expected and he will have significant and permanent restricted mobility as a result of the accident. He also states that Mr. Palomino sustained a permanent impairment and is permanently moderately disabled due to the subject automobile accident. He states that he is aware of the plaintiff's prior motor vehicle accident and he believes that the prior accident was not a factor in Mr Palomino's condition subsequent to the subject accident of 2010.

In her affidavit, Gloria Palomino states that after the accident she began experiencing pain in her neck and back. She was treated at Mount Sinai emergency room and released the same day. She then sought treatment with Dr. Islam for continued pain in the lower back and neck. She then underwent physical therapy for several months until she reached the point where further therapy was no longer helping. She states that to date she continues to suffer pain everyday as a result of the accident and experiences many limitation in her daily activities. She states that she was involved in a prior motor vehicle accident on March 18, 2006 where she also injured her neck and back. However she states that she had completely recovered by the time she had the accident in 2010.

Dr. Mohammad Islam states in his report with regard to Gloria that she underwent physical therapy at Pinoy Physical therapy for pain in her lower back and neck. His initial examination revealed decreased range of motion of the cervical spine and lumbar spine. He diagnosed her initially as having sustained cervical pain syndrome and traumatic low back pain syndrome and recommended physical therapy three times per week. Functional range of motion testing on July 20, 2010 revealed loss of range of motion of the cervical and lumbar spines. His review of the MRI films showed multilevel disc bulges and L5-S1 disc herniation. After several months of physical therapy he felt that the plaintiff reached a plateau as her physical therapy was no longer benefitting her condition and as a result she stopped her treatment.

Dr. Islam reexamined the plaintiff on April 10, 2013 and found she still exhibits the same symptoms as before. His examination of April 2013 revealed loss of range of motion of the [*7]cervical and lumbar spines. The tests were performed under AMA guidelines using AMA norms. He states that in his opinion Ms. Palomino has sustained a permanent impairment and is permanently moderately disabled. He states that he is aware that she was involved in a previous accident in 2006 and after reviewing the appropriate documents he states that whatever injuries she sustained in 2006 were resolved and she was asymptomatic at the time of the subject accident. He states that her condition at this time is permanent, not degenerative, and directly related to the motor vehicle accident of June 5, 2010.

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 competent proof submitted by the defendant, including the affirmed medical reports of Drs. Corso, Sharma and Parisien as well as the examinations before trial of Gloria indicating that she did not miss more than a week of work is sufficient to meet defendant' prima facie burden by demonstrating that Gloria Palomino 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. Sharma signed the report electronically the report the report is competent and admissible pursuant to CPLR 2106 as she states that she personally placed the facsimile signature herself (cf. Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2d Dept. 2008]; Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co., 20 Misc 3d 137(A)[App. Term, 2d Dept. 2008]).

This Court agrees with the plaintiff's contention that the defendant failed to make a prima facie case with respect to Jorge [*8]Palomino because neither of the defendant's examining physicians adequately addressed the alleged injury to his right shoulder which was set forth in his bill of particulars and in the medical records reviewed by the defendant's physicians (see Foster v Franco, 2013 NY Slip Op 6346 [2d Dept. 2013]; Youn Koo Lyu v Aleksandr, 2013 NY Slip Op 6360 [2d Dept. 2013]; Yanping Xu v Gold Coast Freightways, Inc., 107 AD3d 885 [2d Dept. 2013]; Bove v Zanelli, 102 D3d 644 [2d Dept. 2013]).

However, with respect to Gloria for whom defendant did make a prima facie case and with respect to Jorge, even if the defendant had made a prima facie case, this Court finds that the plaintiff raised triable issues of fact by submitting the affirmed medical reports of Dr. Islam attesting to the fact that after a qualitative and quantitative examination, each plaintiff had substantiated injuries contemporaneous to the accident and had significant limitations in range of motion at a recent examination, and concluding that each plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident. As such, each plaintiff raised a triable issue of fact as to whether he or she sustained a serious injury 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, 81 AD3d 903[2d Dept. 2011]; Mahmood v Vicks, 81 ADd 606 [2d Dept. 2011]; Compass v GAE Transp., Inc., 79 AD3d 1091[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]).

In addition, Dr. Islam adequately explained the gap in the plaintiff's treatment by stating that each plaintiff reached the point of maximum medical improvement and any further treatments would be palliative (see Gaviria v Alvardo, 65 AD3d 567 [2d Dept. 2009]; Bonilla v Tortori, 62 AD3d 637 [2d Dept. 2009]).

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

ORDERED, that the defendant's motion for an order granting summary judgment dismissing the plaintiffs' complaint and the cross-motion by plaintiff on the counterclaim JORGE PALOMINO, dismissing the counterclaim and all cross-claims against him on the ground that plaintiff GLORIA PALOMINO did not sustain a serious injury is denied.

Dated: October 7, 2013

Long Island City, NY [*9]

______________________________

ROBERT J. MCDONALD, J.S.C.