Plaintiff David T. Canaday commenced this action against defendants Catherine M. Knapp,^[FN1] Carmine R. Montalbano, and Sean C. Montalbano, seeking to recover for personal injuries resulting from a motor vehicle accident.

This Decision and Order addresses the defendants' motion for summary judgment dismissing the complaint alleging plaintiff has failed to establish a serious injury pursuant to Insurance Law § 5102. Plaintiff opposes the motion.

The court heard oral argument from counsel on August 22, 2014.

This was a three vehicle accident which occurred on September 18, 2009 on Route 201 southbound near the exit for Route 434 in Vestal, New York. Plaintiff Canaday was stopped on Route 201 and waiting in a line of traffic to exit onto Route 434. A vehicle driven by defendant Catherine Knapp was stopped just behind Canaday. Defendant Sean Montalbano approached the vehicles from the rear and due to a distraction failed to stop his vehicle colliding with the rear of Knapp's vehicle which then collided with the rear of the Canaday vehicle.

Defendant Montalbano pled guilty to a violation of Vehicle and Traffic Law § 1129 (a).

This action was commenced upon the filing of a Summons and Complaint on September 14, 2012. Plaintiff's Verified Bill of Particulars alleges serious injuries under the following three categories of Insurance Law § 5102: (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and (3) a medically 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 [*2]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 (Plaintiff's Bill of Particulars, ¶ 17).

Immediately following the accident on September 18, 2009, plaintiff went home and did not seek medical care that day. The following day, plaintiff went to work at Lowe's but left after a couple hours to seek medical assistance for mid-back pain. Three days after the accident, plaintiff was seen by his primary care physician, Arthur Ticknor, M.D., and continued treating with him for several months following the accident. Thereafter Dr. Ticknor referred plaintiff for chiropractic treatment with Mary Ann Champlin, D.C., and osteopathic manipulation by Kevin Hastings, D.O. According to plaintiff's counsel, Dr. Ticknor is no longer practicing medicine in New York and has relocated out of state.^[FN2]

After the accident plaintiff underwent a variety of tests including but not limited to the following with results as noted:

On November 19, 2013, plaintiff underwent an independent medical examination (IME) conducted by Daniel L. Carr, M.D. who opined in a report issued that same date that "[t]here is simply no objective evidence of any orthopedic injury" (Def Ex G). On July 4, 2014, Dr. Carr issued an Addendum to his IME report addressing various arguments raised by plaintiff in opposition which will be discussed below (Reply Attorney Affidavit, Ex A).

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 [3rd [*3]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 evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [3rd Dept 2003]).

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]).

Defendants argue plaintiff's medical records are devoid of any objective medical proof of any injury to plaintiff's thoracic spine and that the only proof of any injury are plaintiff's subjective complaints of pain. Further, defendants argue that plaintiff was found to have excellent range of motion with all objective tests including X-rays, MRIs and CTs showing normal results. Additionally, defendants' rely upon Dr. Carr's IME report in which he found no evidence of injury. In view of the foregoing, the court finds that defendants have met their burden of establishing the absence of a serious injury as a matter of law. Thus, the burden shifts to plaintiff.

In opposition, plaintiff submits his own affidavit, as well as affidavits from Kevin Hastings, D.O. and Mary Ann Champlin, D.C. With respect to these two categories, however, plaintiff may rely only upon the opinion of Dr. Hastings who has been treating plaintiff since March 2012.^[FN3]

Dr. Hastings indicates that he has observed muscle spasms in plaintiff's back upon palpation and manipulation (Peterson v Cellery, 93 AD3d 911 [3d Dept 2012]; Pugh v DeSantis, 37 AD3d 1026, 1028 [3d Dept 2007]). Dr. Hastings acknowledges that plaintiff's studies have not shown any obvious causes of plaintiff's pain, but argues that most of those tests were static [*4](taken with the patient lying on his back). Dr. Hastings highlights an upright MRI taken on March 27, 2011 and concludes it "[r]evealed diminution of the cervical lordosis, and thoracic kyphosis. Together, these conditions indicate a flattening of the natural curve of the spinal and constitute objective evidence of long-term muscular injury..." (Hastings Affidavit, ¶¶ 6-7). Further, Dr. Hastings argues that Dr. Carr did not examine this upright MRI but rather only reviewed a summary report and never commented on the positive findings. The court also accepts plaintiff's subjective descriptions of the extent of his limitations resulting therefrom (Barbagallo v Quackenbush, 271 AD2d 724 [3d Dept 2000]).

In reply, Dr. Carr disputes Dr. Hastings' assertion that he did not review the upright MRI and also disputes Dr. Hastings' conclusions drawn from the upright MRI (Carr IME Addendum, annexed to Krogman Reply Attorney Affidavit).

At this juncture, the court is presented with two experts who interpret the upright MRI differently. As such, the court is now faced with a classic battle of the experts that may not be resolved on a motion for summary judgment (Corbett v County of Onondaga, 291 AD2d 886, 887 [4th Dept 2002]).

Accordingly, in view of the foregoing, defendants' motion for summary judgment 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 is denied.

The so-called 90/180 day category is defined as 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]). A successful claim under this category requires that the proof establish that the curtailment of plaintiff's usual and customary activities rise to the level of "[a] great extent rather than some slight curtailment" based upon objective medical findings (Licari, 57 NY2d 230).

Initially, the court notes that Dr. Carr's IME was conducted on November 19, 2013 and, as such, took place well beyond the 180 day period after this accident and may not be relied upon to meet defendants' initial burden of proof on this category.

That said, defendants may properly rely upon plaintiff's Bill of Particulars, deposition testimony and medical records (Boutsis v Reaves, 31 Misc 3d 1238[A] [2011]). Defendants' arguments on this category are three-fold, namely that plaintiff is one day short of the ninety day requirement; that any restrictions were self-imposed and not medically determined; and that plaintiff has failed to establish that substantially all of his usual and customary daily activities were curtailed.

With respect to the ninety day requirement, this accident occurred on September 18, 2009, so the 180 day period immediately following expired on February 18, 2010. The parties disagree as to whether plaintiff missed ninety days from work during this time period. Plaintiff argues that he missed 96 out of the first 180 days of work following this accident while defendant calculates that he missed only 89 days. The primary difference in the calculations is the three day period from the date of the accident on September 19, 2009 until plaintiff was able to see Dr. Ticknor on September 22, 2009 and then the five day period from November 20 through 24, 2009. The court finds that questions of fact exist regarding the propriety of counting these specific days.

Next, defendants argue that plaintiff's time out of work was self-imposed and not medically determined. Here, the key medical provider with respect to plaintiff's proof in opposition is Mary Ann Champlin, D.C., a chiropractor, who, as relevant here, treated plaintiff for a few months in 2009.^[FN4] Champlin's office records indicate her objective findings upon palpation over several visits of, among other things, "[e]xamination of muscle tenderness and spasm revealed the following: Iliocostalis, las. dorsi, rhomboids revealed severe spasm, revealed severe tenderness. Quadratus lumborum, gluteus maximus revealed moderate spasm, revealed moderate tenderness...." (Champlin Affidavit, Exhibit A, Office note from 10/27/2009). In this court's view, Champlin's objective observation of spasm, seen and felt by the chiropractor on examination, are adequate to raise a question of fact on whether plaintiff's missed days were medically indicated and not based merely on subjective complaints of pain (Hines v Capital Dist. Transp. Auth., 280 AD2d 768 [3d Dept 2001]; Monk v Dupuis, 287 AD2d 187 [3d Dept 2001]).

Finally, defendants argue that plaintiff has failed to establish that substantially all of his usual and customary daily activities were curtailed. Defendants point to plaintiff's deposition testimony in which he relates constant pain caused by lifting, bending, but manageable with medication and limitations on daily activities such as mowing his lawn which is on a hill and tying his shoes (Plaintiff's EBT, p 47). Plaintiff also stated he gave up season tickets to local hockey games due to inability to sit for long periods. However, for the same reasons set forth above, the court finds that plaintiff has submitted sufficient medical evidence as described above to raise questions of fact with regard to this issue.

In view of the foregoing, the court finds plaintiff met his burden in opposition by way of competent medical evidence in raising questions of fact as to whether he was medically prevented from performing substantially all of his usual and customary daily activities during the statutory time frame (Monk, 287 AD2d 187).

Plaintiff's counsel reports that Dr. Ticknor has refused to discuss plaintiff's care with him [*5]or to provide any affidavit to assist in responding to this motion. Plaintiff's opposition includes an alternate form of relief to a finding on the merits, namely denial of this motion based upon CPLR § 3212 (f) as facts necessary to contest the motion exist, but are currently unavailable. Plaintiff seeks denial of the motion to permit time to subpoena and depose Dr. Ticknor. Due to the foregoing, the court need not address plaintiff's alternative request for relief.

In view of the foregoing, defendants' motion for summary judgment dismissing the complaint is denied in its entirety.

It is so ordered.