In this action, plaintiff alleges that, on February 7, 2008, she was a passenger in an Access-A-Ride van bearing New York State plate number 21367LA, which rear-ended another vehicle on the West Side Highway.

According to the bill of particulars, plaintiff allegedly suffered, among other injuries, left shoulder tenosynovitis with fluid within the biceps tendon sheath and joint effusion; a cervical disc herniation at C5-6, a cervical disc bulge at C3-4; straightening of the normal cervical lordosis; a disc herniation at L4-5; and a head [*2]contusion. (Scarglato Affirm., Ex B [Bill of Particulars] ¶ 11.)

Defendants/third-party plaintiffs now move for summary judgment dismissing the action on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d). Plaintiff opposes the motion.

To meet the prima facie burden of summary judgment, a defendant must "submit[ ] expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident." (Vega v MTA Bus Co., 96 AD3d 506, 507 [1st Dept 2012].) Here, defendants/third-party plaintiffs submitted the affirmed report of Dr. Edward S. Crane, who performed an orthopedic evaluation on November 8, 2012. (Scarglato Affirm., Ex E.) Dr. Crane found normal ranges of motion in plaintiff's cervical spine, and left shoulder. (Id.)

With respect to plaintiff's lumbar spine, Dr. Crane found mild tenderness in the left lumbosacral paravertebral musculature, with no associated spasm. Dr. Crane's report indicates, when plaintiff stood erect and was asked to bend forward at her waist, plaintiff reported sharp pain at 60 degrees, which was inconsistent with a plaintiff's sitting position on the exam table. Dr. Crane therefore concluded that plaintiff had painless lumbosacral flexion to 90 degrees. (Id.)

The Court notes that Dr. Crane stated that range of motion measurements for the cervical spine and lumbar flexion were made visually because the use of a goniometer was impractical. (Id.) Dr. Crane stated that, at the shoulder, the goniometer is used to measure forward elevation and abduction, and that shoulder rotation is assessed visually. (Id.)

Plaintiff argues that the Court should reject Dr. Crane's report because the corresponding normal value upon which Dr. Crane relied was expressed as a range of values, as opposed to a specific numeric value. For example, a normal range of motion for abduction of the shoulder was "between 160° and 180°." (Id.) Plaintiff cites two Supreme Court cases where the courts rejected medical reports which set forth, as normal values, "variable ranges of motion." (See Ramirez v Castaneda-Valle, 2012 WL 5288050, 2012 NY Misc Lexis 4991 [Sup Ct, Suffolk County 2012] Manno v Olivia Transp. Corp., 2011 WL 2428705, 2011 NY Misc LEXIS 2745 [Sup Ct, Suffolk County 2011].)

This Court respectfully declines to follow Ramirez and Manno, to the extent that these decision stand for the proposition that a corresponding normal value for a range of motion expressed in a medical report must be expressed as a single normal value for defendants to meet their prima facie burden. In essence, plaintiff disputes [*3]the reliability of the range of values upon which Dr. Crane relies to determine a normal range of motion. However, plaintiff did not submit an affirmation or affidavit from a physician or expert offering a contrary opinion.

Defendants therefore met their prima facie burden of demonstrating that plaintiff did not suffer a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system.

Defendants also met their prima facie burden of demonstrating that plaintiff did not suffer a serious injury under the 90/180 day category, by submitting workers compensation records, wherein a claims examiner noted that returned to work on March 21, 2008, a month and a half after the motor vehicle collision. (Scarglato Affirm., Ex H.) Plaintiff's return to work supports a legitimate inference that the plaintiff must have been able to perform at least most of her usual and customary daily activities within the 180 day period after the motor vehicle collision. (Correa v Saifuddin, 95 AD3d 407, 409 [1st Dept 2012].)

In opposition to the motion, plaintiff submitted, among other things, the affirmed report of Dr. Jay Nathan, who performed an orthopedic examination on May 4, 2009 in connection with a workers compensation claim. (Wyatt Opp. Affirm., Ex D.) Dr. Nathan found limited ranges of motion in plaintiff's left shoulder, in forward elevation and abduction. Dr. Nathan also found that plaintiff's sustained injuries and the reported accident were causally related. (Id.)

Although Dr. Nathan did not examine plaintiff recently, his affirmed report may be sufficient to raise a triable issue of fact as to serious injury under the "significant limitation of use" category.

"[A] significant limitation [of use of a body function or system] need not be permanent in order to constitute a serious injury. Indeed, a permanent consequential limitation' requires a greater degree of proof than a significant limitation', as only the former requires proof of permanency. Insurance Law § 5102 (d) does not expressly set forth any temporal requirement, although assessment of the limitation's significance does require consideration of its duration in addition to its extent and degree. Therefore, the lack of a recent examination, while sometimes relevant, is not dispositive by itself in determining whether a plaintiff has raised a triable issue of fact in opposing a defendant's prima facie evidence under the significant limitation' category."

The Court notes that Dr. Nathan's report did not state whether the limited ranges of motion were objectively measured by any instruments, such as goniometer.

The Appellate Division, First Department has consistently required that range of motion findings must be based on "objective tests." Thus, in Linton v Nawaz (62 AD3d 434 [1st Dept 2009], affd 14 NY3d 821 [2010]), the Appellate Division stated, "The defendant cannot satisfy that burden [of summary judgment] if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion." (Accord Beazer v Webster, 70 AD3d 587 [1st Dept 2010]["Defendants' failure to indicate the objective tests used to determine the range of motion in plaintiff's cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal"] Mensah v Salah Enters., Inc., 90 AD3d 492 [1st Dept 2011].)

Similarly, the Appellate Division ruled that a plaintiff must show objective measurements of range of motion in order to raise a triable issue of fact warranting denial of summary judgment. (See Nguyen v Abdel-Hamed, 61 AD3d 429 [1st Dept 2009][plaintiff's chiropractor, while concluding, to the contrary, that plaintiff's injuries were permanent and significant, failed to set forth any objective basis for his findings, such as the tests he performed to measure plaintiff's range of motion] Gibbs v Hee Hong, 63 AD3d 559 [1st Dept 2009] Harris v Ariel Transp. Corp., 55 AD3d 323 [1st Dept 2008].)

Examples of objective tests include orthopedic diagnostic tests, such as palpation, impingement sign and straight leg raising tests. (See Lopez v Abdul-Wahab, 67 AD3d 598 [1st Dept 2009].) Given that an examining physician or chiropractor gauges a plaintiff's range of motion visually, this Court understood the Appellate Division's insistence upon "objective" testing or "objective" measurements of range of motion to require something other than an orthopedic diagnostic test, and something more than a measurement taken visually, i.e., a measurement that must be taken with instruments, such as a goniometer.^[FN1] [*5]

However, in Frias v Son Tien Liu (107 AD3d 589 [1st Dept 2013]) the Appellate Division ruled that defendants met their prima facie burden for summary judgment based on the examination of an orthopedic surgeon, who did not take range of motion measurements with an instrument. The Appellate Division stated,

"Defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting the affirmed reports of an orthopedic surgeon who examined the alleged injured body parts, listed the tests he performed and recorded range of motion measurements, expressed in numerical degrees and the corresponding normal values, and found no limitations. The surgeon's examination was sufficient, even though he did not use an instrument to measure the ranges of motion."

Given that Appellate Division, First Department clearly spoke in Frias on the issue of whether the plaintiff's range of motion must be taken with instruments, this Court must follow Frias. Under Frias, Dr. Nathan's report—which did not state that plaintiff's limited ranges of motion were objectively measured by any instruments— is sufficient to raise a triable issue of fact as to whether suffered a serious injury with respect to a significant limitation of use of her left shoulder. Moreover, defendant's physician, Dr. Crane, opined that shoulder rotation must be assessed visually, and not measured by a goniometer.

Because plaintiff has raised a triable issue of fact as to whether she suffered a significant limitation of use of her left shoulder, the Court need not address the sufficiency of plaintiff's submissions to raise triable issues of fact as to whether plaintiff met the no-fault threshold under a different statutory category of serious injury, with respect to her other alleged injuries. (See Johnson v KS Transp., Inc., ___ [*6]AD3d ___, 982 NYS2d 15 [1st Dept 2014].) Thus, all pleaded statutory grounds of "serious injury" are reserved for trial."If the trier of fact determines that plaintiff sustained a serious injury [on any statutory ground], it may award damages for all injuries causally related to the accident, even those that do not meet the threshold." (Angeles v American United Transp., Inc., 110 AD3d 639, 640 [1st Dept 2013].)

Accordingly, it is hereby

ORDERED that defendants/third-party plaintiffs' motion for summary judgment is denied.

Dated: April 3, 2014

New York, New York

ENTER:

/s/

J.S.C.