This Decision and Order addresses two separate defense motions relating to a three vehicle accident that occurred on November 15, 2010.

First, defendants Dalton Smith, Spectrum Electrical, Spectrum Electrical a/k/a Spectrum Electrical, Inc. and Spectrum Electrical Services, Inc. (hereinafter sometimes Smith/Spectrum Defendants) move for partial summary judgment dismissing the complaint against plaintiff Rita Lindow on the grounds that she has failed to establish a serious injury as a matter of law under Insurance Law § 5102.^[FN1] Plaintiffs oppose the motion.

Second, third-party defendants Katherine R. Kupillas and Peter J. Kupillas (hereinafter sometimes Kupillas Defendants) move for summary judgment dismissing the third-party complaint based on lack of negligence or, in the alternative, for an order of partial summary judgment dismissing the third-party complaint against plaintiff Rita Lindow on the grounds that she has failed to establish a serious injury as a matter of law under Insurance Law § 5102. Plaintiffs and the Smith/Spectrum Defendants oppose the portion of the motion seeking dismissal on lack of negligence. Plaintiffs oppose the serious injury aspect of the motion.

The court heard oral argument from counsel on June 13, 2014. Trial notes of issue have been filed but no trial has yet been scheduled until resolution of these motions.

This automobile accident occurred on November 15, 2010, at approximately 4:10 p.m., on Conklin Road, a two lane road, located in the Town of Conklin, New York. There were three vehicles traveling southbound on Conklin Road in single file. The lead vehicle was operated by [*2]Katherine Kupillas and owned by her father Peter Kupillas ("Kupillas Vehicle"), the second vehicle was operated by Terry Lindow, with his wife, Rita Lindow, as a restrained front seat passenger ("Lindow Vehicle"), and the third vehicle was a pickup truck owned by Spectrum Electrical Services, Inc. and operated by an employee, Dalton Smith ("Smith/Spectrum Vehicle").

For purposes of this motion, there are two versions of how this accident occurred, the Lindow version and the Smith/Spectrum version of events. In both versions, the lead vehicle, the Kupillas Vehicle, pulled to the right side of the road in response to seeing an uninvolved pedestrian known to Ms. Kupillas.

The Lindow version of events is best described by the driver Terry Lindow, but is corroborated by his wife's deposition testimony as well (O'Brien, Ex F).^[FN2] Mr. Lindow stated that the Kupillas Vehicle was 15-20 car lengths in front of him and they were both traveling approximately 55 m.p.h. when he observed the Kupillas Vehicle put on her right turn signal and pull off onto the right shoulder (O'Brien, Ex F, pp 19-22). Mr. Lindow stated "I took my foot off the accelerator to slow" (O'Brien, Ex F, p 19), but did not apply the brakes and had room to go by the Kupillas Vehicle without crossing over the center line or leaving his lane of travel (O'Brien, Ex F, p 29). Mr. Lindow also recalled his wife stating "I think you better toot the horn" (O'Brien, Ex F, p 19). In describing how far over the Kupillas Vehicle pulled, Mr. Lindow stated "It was a very short shoulder, if I remember. But like I said, I did not have to go into the other lane to avoid her" (O'Brien, Ex F, p 22). Without warning, the Lindow Vehicle was struck from behind by the Smith/Spectrum Vehicle.

The Smith/Spectrum version of events is different. More specifically, Mr. Smith testified that all three vehicles were traveling at approximately 55 m.p.h. and that he was traveling 1½ - 2 car lengths behind the Lindow Vehicle which in turn was traveling 5-6 feet behind the Kupillas Vehicle (McCarthy, Ex B, pp 33, 36-37, 40, 43, 58).^[FN3] Mr. Smith stated that the Lindow Vehicle was tailgating the Kupillas Vehicle, but that his distance of 1½ - 2 car lengths behind the Lindow Vehicle while traveling 55 m.p.h. was safe (McCarthy, Ex B, pp 58-59). Mr. Smith testified that the Lindow Vehicle slammed on their brakes (McCarthy, Ex B, p 36). Mr. Smith said the Kupillas Vehicle pulled over in a manner that was "pretty sudden. It wasn't like slam on the brakes and turn" (McCarthy, Ex B, p 60). Mr. Smith further described the Kupillas Vehicle as having pulled over so that it "straddled the line" (McCarthy, Ex B, p 35). Mr. Smith further described the manner in which the Kupillas Vehicle had pulled over as follows:

Ms. Kupillas, the driver of the first vehicle, was also deposed. Ms. Kupillas stated she was driving on Conklin Road when she saw an elderly women she knew from work, named Margaret, walking towards her along the side of the road about a football field away. Ms. Kupillas testified that she decided to pull her vehicle over to offer the woman a ride, turned on her blinker and started to slow down (McCarthy, Ex C, pp 50-51).^[FN4] Ms. Kupillas stated she slowly pulled her vehicle completely off the road onto the gravel shoulder with her right tire on the grass (McCarthy, Ex C, pp 34-36). More specifically, Ms. Kupillas stated "I was off the side of the - - completely off the side of the pavement. I was not on any of the pavement, I was on gravel and grass" (McCarthy, Ex C, p 34).

Ms. Kupillas further testified that she put her vehicle in park and began talking to Margaret through the open passenger window when Margaret's facial expression caused her to look into her rear-view mirror. At that moment, Ms. Kupillas stated she saw the Lindow Vehicle fast approaching from behind. Ms. Kupillas stated that although her vehicle was already pulled over onto the shoulder she feared the Lindow Vehicle would strike her vehicle so she put her car in drive and pulled over another 4 feet or so further onto the grass (McCarthy, Ex C, pp 62, 64, & 71). Ms. Kupillas heard the Smith/Spectrum Vehicle strike the Lindow Vehicle, but her vehicle was not hit.

Immediately following the accident, plaintiff Rita Lindow (the passenger in the Lindow Vehicle) was transported by ambulance to a local emergency room complaining of neck, back, and left elbow pain. She was treated in the emergency room and released.

Mrs. Lindow has had an unfortunate history of past car and work-place accidents including the following:

At the time of this accident, plaintiff Rita Lindow was employed by Kohl's as a jewelry supervisor on a full-time basis. Mrs. Lindow stated that she lost five days of work because of this car accident.

On March 9, 2011, plaintiff commenced this action. On May 25, 2011, the Smith/Spectrum Defendants commenced a third-party action. Plaintiff's Verified Bill of Particulars alleges she suffered a serious injury under four categories each involving her cervical spine and lumbar spine including: "a permanent loss of use of body systems, to wit: cervical spine and lumbar spine"; (2) "a permanent consequential limitation of use of body systems, to wit: cervical spine and lumbar spine"; (3) "a significant limitation of use of the cervical spine and [*3]lumbar spinal body system"; and (4) a medically determined injury or impairment of a non-permanent nature (the so-called 90-180 days category) (O'Brien, Ex E, ¶ 10).

The court will initially address that portion of third-party defendants Kupillas' motion for summary judgment dismissing the third-party complaint based on lack of negligence.^[FN5] The substance of the motion is that there are two versions of the accident, one in which the Lindow Vehicle slammed on the brakes and the other in which it did not. The Kupillas' motion argues that "[n]o matter which version of the accident is accepted, the actions of the Kupillas vehicle were not a proximate cause of the accident" (McCarthy Affidavit, ¶ 7).

The court finds that Kupillas' motion to dismiss the third-party complaint based on lack of negligence must be denied due to questions of fact, namely the manner in which Ms. Kupillas pulled onto the shoulder and slowed/stopped her vehicle (Grant v Nembhard, 94 AD3d 1397 [3d Dept 2012]; Betancourt v Manhattan Ford Lincoln Mercury, Inc., 195 AD2d 246 [1st Dept 1994], appeal dismissed 84 NY2d 932 [1994]). In addition, the court finds differing testimony as to the exact location in which Ms. Kupillas stopped her vehicle. Mr. Smith testified that the left tires of the Kupillas Vehicle were still on pavement (the travel portion of the road), while Ms. Kupillas testified that she was completely pulled over onto grass and gravel. Additionally, there is conflicting testimony as to how quickly Ms. Kupillas stopped or decreased the speed of her vehicle. Mr. Smith stated she pulled over "pretty sudden", while Ms. Kupillas stated she used her blinker and slowed down over a distance equivalent of a football field. In view of the foregoing, the court finds that there are questions of fact as to whether the Kupillas Vehicle "[s]et into motion an eminently foreseeable chain of events that resulted in a collision" between the Lindow Vehicle and Smith/Spectrum Vehicle (Murtagh v Beachy, 6 AD3d 786, 787-788 [3d Dept 2004]).

Consequently, the third-party defendant Kupillas' motion for summary judgment dismissing the third-party complaint based on lack of negligence is denied.

It is well-settled that on a defense motion seeking summary judgment relative to the serious injury threshold the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [3d Dept 2003]). Assuming a defendant meets this initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical [*4]evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [3d Dept 2003]).

Additionally, when, as here, a plaintiff has pre-existing injuries, plaintiff's proof must include objective evidence to distinguish aggravation of the pre-existing condition from the pre-existing condition itself (Dabiere v Yager, 297 AD2d 831, 832 [3d Dept 2002], lv denied 99 NY2d 503 [2002]).

Plaintiff's Bill of Particulars alleges she suffered a "a permanent loss of use of body systems, to wit: cervical spine and lumbar spine". In order to establish a prima facie case relative to permanent loss of use of a body organ, member, function or system, plaintiff must establish that the alleged "permanent loss of use" is total (Oberly v Bangs Ambulance, 96 NY2d 295, 299 [2001]). The term "total" has been deemed to mean just what it implies, that a partial loss of use is insufficient to qualify under this category (Best v Bleau, 300 AD2d 858, 859-860 [3d Dept 2002]). To the extent that plaintiff's papers may be construed as alleging a permanent pain condition, it is well-settled that subjective complaints of pain are insufficient to establish a serious injury (Cody v Parker, 263 AD2d 866 [3d Dept 1999]). Otherwise, there is simply no proof whatsoever or argument by plaintiff Rita Lindow that any of her injuries amount to a total loss of use. Defendants' motion for summary judgment dismissing this permanent loss of use category is granted.

Permanent consequential limitation of use of a body organ or member

The court will address these two categories together since they involve similar considerations. The Court of Appeals has explained that the "limitation of use" may be established in one of two ways, namely by medical proof of a quantitative percentage (e.g., a numeric percentage of a loss of range of motion) or, in the alternative, medical proof of a functional impairment (excluding loss of range of motion) by way of a medical expert's qualitative assessment of plaintiff's current condition as compared to his normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The term "significant" means the "limitation" must be shown to be more than minor, mild or slight as established by expert medical proof (Licari v Elliott, 57 NY2d 230, 236 [1982]).

During oral argument, counsel conceded that the medical records reflect that in 1991 Mrs. Lindow was diagnosed by Dr. Desai as suffering from a permanent partial disability described as a 20% loss of normal use of her cervical and lumbar spines resulting from a 1991 car accident. Based upon this pre-existing injury, the baseline for any proof on this motion attempting to establish a serious injury for Mrs. Lindow must exceed her previously diagnosed 20% permanent partial disability.

Turning to defendant's proof, Dr. Al-Khalidi reviewed plaintiff's medical records and conducted an independent medical examination and found no objective medical evidence establishing either a significant limitation of use or permanent consequential limitation of use. More specifically, Dr. Al-Khalidi opined that "[i]t is my opinion, to a reasonable degree of medical certainty, that Mrs. Lindow sustained only minor or mild soft tissue injuries, possibly to her neck and shoulders, as a result of the November 15, 2010 car accident that temporarily aggravated a pre-existing condition in her neck and shoulders, leaving no permanency" (Al-Khalidi Affidavit, ¶ 19 [emphasis added]). In this court's view, defendants' proof including unsworn prior medical records, satisfies defendants' initial burden of establishing that Mrs. Lindow did not suffer a serious injury under these two categories (Womack v Wilhelm, 96 AD3d 1308 [3d Dept 2012]).

Thus, the burden shifted to plaintiff to establish by objective medical proof an aggravation of pre-existing injuries above and beyond her previously diagnosed 20% loss of normal use. A review of plaintiff's medicals reveals that she has failed to meet her burden of submitting any objective evidence, expert or otherwise, by which the claimed aggravation of injuries resulting from this current accident on November 15, 2010 injuries can be measured as compared to the previously diagnosed 20% loss of normal use (Pinkowski v All-States Sawing & Trenching, 1 AD3d 874, 876 [3d Dept 2003]). The court also finds that Dr. Kammerman's reports fail to set forth diagnostic techniques in reaching his conclusions (Tuna v Babendererde, 32 AD3d 574 [3 Dept 2006]). In this court's view, Dr. Kammerman's opinion simply does not provide any objective evidence from which to distinguish an aggravation of pre-existing injuries above and beyond the previously diagnosed 20% loss of normal use (Hines v Capital Dist. Transp. Auth., 280 AD2d 768 [3d Dept 2001]) or, for that matter, rising above the 25 percent threshold cited for surviving summary judgment (DeLeon v J & J Towing, Inc., 32 AD3d 986 [2d Dept 2006]).^[FN6]

Moreover, the court also notes that plaintiff has failed to explain gaps in treatment that occurred after this accident. During oral argument plaintiff urged this court not to punish plaintiff for the seven years that she was asymptomatic before this accident from 2003 through 2010. The court agrees that plaintiff's seven year treatment free period prior to this accident does not count as a gap in treatment. However, this accident occurred on November 15, 2010 and the court does finds gaps in treatment thereafter.

With respect to Dr. Kammerman, the record reflects that Mrs. Lindow was examined from the date of the accident through May 2012, but did not return again to Dr. Kammerman until October 22, 2013, a 17 month span. Additionally, plaintiff has not seen Dr. Kammerman since October 22, 2013 to the present time, another 8 month gap. With respect to physical therapy, Mrs. Lindow underwent physical therapy for three months from November 2010 to [*5]February 2011 and then again for approximately one month between May-June 2012. There was no additional physical therapy for Mrs. Lindow until February 2013 but that appears to be related to her treadmill fall. It is well-settled that while a gap in and of itself is not dispositive, a plaintiff does need to offer some reasonable explanation for the gap in treatment (Pommells v Perez, 4 NY3d 566, 574 [2005]). Here, plaintiff has failed to provide any such explanation. Consequently, the court finds that these post-accident gaps in treatment also warrant summary judgment in favor of defendants.

In sum, the court finds that plaintiff has failed to come forward with any evidentiary proof establishing that Mrs. Lindow's prior 20% pre-existing permanent limitation was permanently worsened by this accident. Accordingly, in view of the foregoing, defendants' motion for summary judgment is granted with respect to the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories.

The 90/180 day serious injury category requires proof of a "[m]edically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's 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" (Insurance Law § 5102 [d]). The curtailment of plaintiff's usual and customary activities must rise to the level of "[a] great extent rather than some slight curtailment" based upon objective medical findings (Licari, 57 NY2d at 236).

It is well-settled that medical examinations and/or records post-dating the actual 180-day period are irrelevant to this inquiry (Lowell v Peters, 3 AD3d 778, 779-780 [3d Dept 2004]).

That said, however, Mrs. Lindow's deposition testimony fails to establish that she was prevented from performing substantially all of the material acts which constitute her usual and customary activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Mrs. Lindow readily admitted that she missed, at most, five days of work following the accident and fails to identify any other work-related restrictions. With respect to other activities, Mrs. Lindow recites in her deposition various certain activities that she no longer participates in such as crocheting, entertaining, attending sports, and taking her grandchildren to the park (O'Brien, Ex F, pp 129-130). Mrs. Lindow also described difficulty "walking, going up and down stairs" and with "vacuuming, bending, doing laundry, lifting [her] grandchildren" (O'Brien, Ex F, pp 91-92). However, plaintiff has failed to submit any proof establishing that these limitations were significant and/or medically indicated rather than self-imposed (Kern v Ash, 252 AD2d 930 [3d Dept 1998]; Delaney v Lewis, 256 AD2d 895 [3d Dept 1998]).

Accordingly, in view of the foregoing, defendants' motion for summary judgment is granted with respect to the 90-180 day category.

In view of the foregoing, the court finds as follows:

(1)Defendants Dalton Smith, Spectrum Electrical, Spectrum Electrical a/k/a Spectrum Electrical, Inc. and Spectrum Electrical Services, Inc. motion for partial summary judgment dismissing the complaint against plaintiff Rita Lindow on the grounds that she has failed to establish a serious injury as a matter of law under Insurance Law § 5102 is GRANTED;

(2)Third-party defendants Katherine R. Kupillas and Peter J. Kupillas' motion for summary judgment dismissing the third-party complaint based on lack of negligence is DENIED; and

(3)Third-party defendants Katherine R. Kupillas and Peter J. Kupillas' motion

It is so ordered.

The court will schedule a pre-trial conference with counsel to set a trial date on the remaining claim of plaintiff Terry Lindow.

Binghamton, New York