The following papers numbered 1 to 15 were read on this motion by defendants, A.F. VASCONEZ-VALLEJO and MASSIMO MEGIN, for an order pursuant to CPLR 3212 granting the defendants summary judgment and dismissing the complaint of plaintiff, YOUNG MI HWANG, on the ground that the plaintiff has not sustained a serious injury within the meaning of Insurance Law §§ 5102 and 5104:

Papers Numbered

Notice of Motion-Affidavits-.Exhibits-Memo of Law.....1 - 7

Affirmation in Opposition-Affidavits..................8 - 12

Reply Affirmation....................................13 - 15

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This is a personal injury action in which Plaintiff, Young Mi Hwang, seeks to recover damages for serious personal injuries she allegedly sustained on September 22, 2009, as a result of a motor vehicle accident that took place on Queens Boulevard at its intersection with 58th Street, Queens County. Plaintiff alleges that the accident occurred when her vehicle was struck in the rear by the defendant's vehicle while the plaintiff's vehicle was at a complete stop waiting to make a left turn.

The plaintiff commenced this action by filing a summons and complaint on April 17, 2012. Issue was joined by service of defendant's verified answer dated May 25, 2012. Plaintiff filed a [*2]Note of Issue on July 24, 2013. The matter is presently on the calendar of the Trial Scheduling Part on June 11, 2014.

Defendant now moves for an order pursuant to CPLR 3212 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 defendant submits an affirmation from counsel, Michael P. Ross, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial; and the affirmed medical reports of orthopedic surgeon, Dr. Jonathan Glassman, and radiologist, Dr. A. Robert Tantleff.

In her verified bill of particulars the plaintiff states that as a result of the accident she sustained, inter alia, disc bulges at C3-4, C4-5, C5-6, a herniated disc at L5-S1, a partial tear of the supraspinatus tendon in the left shoulder, a tear of the medial meniscus and lateral meniscus of the left knee, and a partial tear of the anterior cruciate ligament of the left knee. She states that she was confined to bed for three days and confined to her home for one week following the accident. The plaintiff contends that she sustained a serious injury as defined in Insurance law §5102(d).

In her examination before trial taken on March 7, 2013, plaintiff, age 35, a representative for an insurance company, testified that she was involved in a prior motor vehicle accident in 2007 for which she underwent an MRI of her neck, right shoulder, and lower back, received a course of physical therapy and required surgery for her right shoulder. She testified that she stopped treatment for the 2007 accident in 2009 prior to the date of the subject accident and had no pain at that time. With respect to the subject accident, she stated that on the date in question she was coming from an auto repair shop in College Point and was heading to Staples on 58th Street and Queens Boulevard. She testified that at approximately 4:45 p.m. she was completely stopped in the westbound left turn lane of Queens Boulevard at 58th street when her vehicle was struck in the rear by the defendant's vehicle. She stated that as a result of the impact her left shoulder and back hit the seat and her left knee struck the dashboard. The police came to the scene but she did not request medical assistance and she drove her vehicle home. The following day she sought medical treatment with the physical therapist she had treated with in connection with her 2007 accident. She stated that she was also seen by Drs. Yom, Choi, Rosenblatt, and Seldes, as well as a physical therapist. She was also referred for MRIs. Her physical therapy which consisted of acupuncture and chiropractic treatment lasted for five or six [*3]months at which time she stopped going because her no-fault benefits were terminated. She was treated for pain in her neck, back, and left shoulder. At the end of therapy she felt better but still had some pain. She has not had any other treatment in connection with the 2009 accident since the five or six months of physical therapy. She did not miss any time from student teaching as a result of the accident. She stated that she still has pain from her injuries.

Plaintiff was examined by defendant's retained orthopedist, Dr. Jonathan D. Glassman on May 1, 2013. She presented with complaints of mild neck discomfort, and mild left shoulder discomfort, lower back pain and left knee pain. She told Dr. Glassman that she was involved in a prior motor vehicle accident on December 5, 2007 in which she sustained injuries to her cervical spine, right shoulder, and lumbar spine, and underwent right shoulder surgery of 2008. Dr. Glassman performed a physical examination including objective range of motion testing which showed that the plaintiff had no loss of range of motion of the cervical spine, minor loss of range of motion of forward flexion of the lumbar spine, no loss of range of motion of the left shoulder and no loss of range of motion of the left knee. He states that based upon the findings of his examination that there is no disability as a result of the 2009 motor vehicle accident. He also states that the "plaintiffs complaints are appreciated and duly noted but not supported by objective clinical findings."

Dr. Tantleff a radiologist reviewed the MRI studies of the plaintiff's left shoulder, left knee, cervical spine and lumbar spine. He found no tear in the left shoulder and no evidence of recent trauma. He found no meniscal tears of the left knee and no findings causally related to the subject motor vehicle accident. He also found that based union a review of the left knee MRI from 2008 that the findings from 2009 preexisted and were unrelated to the accident of 2009. With respect to the MRI of the cervical spine, he found longstanding chronic discogenic disc disease throughout the cervical spine and no injuries related to the subject accident. His review of the lumbar spine MRI showed degeneration and desiccation at L$-5 and L5-S1 and longstanding degenerative disease and no findings related to the subject accident.

Defendant's counsel contends that the affirmed medical reports of Drs. Glassman and Tantleff and the plaintiff's examination before trial are sufficient to establish, prima facie, that the plaintiff has not sustained a fracture, a permanent loss of a body organ, member, function or system; that she has not sustained a permanent consequential limitation of a [*4]body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the plaintiff, who did not miss any time from student teaching as a result of 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 (see Canelo v Genolg Tr., Inc., 82 AD3d 584 [1st Dept. 2011] McIntosh v O'Brien, 69 AD3d 585 [2d Dept. 2010] Kearse v New York City Tr. Auth., 16 AD3d 45 [2d Dept. 2005]).

Further, defendant asserts that evidence of disc herniations, disc bulges and tendon tears are 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 (see Simanovskiy v Barbaro, 72 AD3d 930 [2d Dept. 2010][the existence of bulging discs and torn ligaments is not evidence of a serious injury in the absence of objective evidence of the extent and duration of the alleged physical limitations resulting from these injuries] Yakubov v CG Trans Corp., 30 AD3d 509 [2d Dept. 2006] Piperis v Wan, 49 AD3d 840 [2d Dept. 2008]).

In opposition, plaintiff's attorney, Bobby Walia,, Esq., submits his own affirmation as well as the plaintiff's deposition transcript; and the affirmed medical reports of Dr. Marc J. Rosenblatt, Dr. Ayoob Khodadadi and Dr. Anand P. Lalaji.

Dr. Rosenblatt states that he first examined the plaintiff on September 23, 2009 one day following the accident in question. At that time the plaintiff complained of neck pain, low back pain, left shoulder and left knee pain. He states that based on his examination at that time he found that her complaints and injuries were caused by the accident of September 22, 2009. He states that her MRIs which were conducted in 2009 showed left knee meniscal tear and partial tear of the supraspinatus muscle of the left shoulder as well as disc bulges of the cervical spine and lumbar spine. In a recent examination of November 13, 2013 Dr Rosenblatt found significant loss of range of motion of the cervical spine, thoracolumbar spine, left shoulder and left knee and he concluded that the injuries are causally related to the accident of September 2009 and not due to pre-existing degenerative conditions. Dr. Rosenblatt did not address the significance of the injuries sustained by the plaintiff in her prior accident of 2007.

Radiologist, Dr. Ayoob Khodadadi reviewed the MRIs of the plaintiff's left shoulder and left knee taken in October 2009. He found a partial tear of the supraspinatus tendon of the left shoulder and a tear of the medial meniscus and anterior cruciate ligament. Dr. Lalaji reviewed the MRI of the plaintiff's cervical spine and lumbar spine and found disc bulges at C3-4, C4-5, C5-6 and L5-S1

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. Glassman and Tantleff and the plaintiff's testimony at her examination before trial stating that she did not miss any time from her student teaching job immediately following the accident are sufficient to meet defendants' 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]). Even though Dr. Glassman found limitations of the plaintiff lumbar spine, the limitations were minor in nature and insignificant within the meaning of the no-fault statute (see McLoud v Reyes, 82 AD3d 848 [2d Dept. 2011] McMullin v Walker, 68 AD3d 943 [2d Dept. 2009] Trotter v Hart, 285 AD2d 772 [3rd Dept. 2001] Ibragimov v Hutchins, 8 AD3d 235 [2d Dept. 2004] St. Felix v Mackney, 2012 NY Slip Op 30503(U) {Sup Ct. Nassau Cty 2012]).

In opposition, this court finds that the plaintiff failed to raise a triable issue of fact. The plaintiff submitted the reports of Dr. Rosenblatt, Dr. Ayoob Khodadadi and Dr. Anand P. Lalaji to demonstrate that the plaintiff sustained disc bulges a [*5]partial tear of the supraspinatus tendon in the left shoulder, a tear of the medial meniscus and lateral meniscus of the left knee, and a partial tear of the anterior cruciate ligament of the left knee as a result of the accident and finding that the plaintiff had significant limitations in range of motion of her cervical and lumbar spines both contemporaneous to the accident and in a recent examination, and concluding that the plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident. However, Dr. Rosenblatt, although informed of the plaintiff's prior accident, did not address the significance of the fact that the plaintiff sustained injuries to her cervical and lumbar spines in a motor vehicle accident two years prior to the subject accident. Dr. Rosenblatt did not provide evidence ruling out the prior accident as the cause of plaintiff's limitations (see Wallace v Adam Rental Transp., Inc., 68 AD3d 857 [2d Dept. 2009] Joseph v A & H Livery, 58 AD3d 688 [2d Dept. 2009] Yun v. Barber,63 AD3d 1140 [2d Dept. 2009] Penaloza v Chavez, 48 AD3d 654 [2d Dept. 2008]), and therefore Dr. Rosenblatt's conclusion that the plaintiff sustained significant limitations of a permanent nature as a result of the subject accident are merely speculative (see Yunatanov v Stein, 69 AD3d 708 [2d Dept. 2010] Cantave v Gelle, 60 AD3d 988 [2d Dept. 2009] Silla v Mohammad, 52 AD3d 681 [2d Dept. 2008] Rabolt v Park, 50 AD3d 995 [2d Dept. 2008] Moore v. Sarwar, 29 AD3d 752 [2d Dept. 2006] cf. Keum Lee Jeong v Imperial Contract Cleaning, Inc., 63 AD3d 795 [2d Dept. 2009]).

Although Drs. Khodadi and Lalji found the disc bulges and tendon tears as set forth above, they did not causally relate their findings to the subject accident of 2009.

In addition, the plaintiff failed to submit competent medical evidence that the injuries allegedly sustained by her as a result of the subject accident rendered her unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days following the accident. The plaintiff himself testified that he did not miss any time from her student teaching job as a result of the accident (see Ayotte v Gervasio, 81 NY2d 1062 [1993] Roman v Fast Lane Car Service, Inc., 46 AD3d 535 [2d dept. 2007] Sainte-Aime v Ho, 274 AD2d 569 [2d Dept. 2000]).

Accordingly, based upon the foregoing, it is hereby

ORDERED, that the defendants' motion for summary judgment is granted and the plaintiff's complaint is dismissed.

The clerk is directed to enter judgment accordingly.

Dated: Long Island City, NY

April 8, 2014

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ROBERT J. MCDONALD, J.S.C.