The defendant has moved for summary judgment dismissal of the complaint on the ground that the plaintiff did not suffer a serious injury as defined by Insurance Law section 5102(d). The plaintiff has opposed and cross-moved for summary judgment on the issue of both negligence and serious injury. This matter concerns a motor vehicle accident that occurred on May 31, 2010 on Fayette Street near West Seneca Street in Manlius, New York. Plaintiff's bill of particulars alleges the following serious injury categories under the statute: permanent loss of use of a body organ or member, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined injury or impairment of a non-permanent nature which prevents plaintiff from performing substantially all of the material acts which constitute her usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

In moving for summary judgment dismissal, the defendant relies upon plaintiff's deposition testimony and bill of particulars, as well as an Independent Medical Examination (IME) report from Dr. Daniel Carr. Plaintiff testified that she was the passenger in a vehicle operated by defendant, her boyfriend at the time, when it came into contact with another vehicle. [*2]She complained of pain at the scene, but admittedly declined being transported to the hospital. Plaintiff also testified that her treating physicians diagnosed her with an ankle sprain and she did not recall the diagnosis for her neck and finger, but admitted her finger was not broken. Defendant also points to plaintiff's medical records and x-rays showing that from June 1 through 2, 2010 she was diagnosed with a cervical strain, ankle sprain, finger and shoulder sprain and strain. She declined further treatment until over three months later when she saw her own physician on September 3, 2010 and kept working at her job without any restrictions for over two years, until she requested that the doctor remove her from work for work related injuries.

Defendant also provides an IME report from Dr. Carr which found her imaging studies to have been relatively benign, with the neck studies showing some appropriate degenerative findings and that there was no acute traumatically induced legions on the neck imaging studies, including x-rays, CT, MRI and electro diagnostic testing. With respect to the ankle, he noted chronic degenerative changes and some thickening of the anterior talofibular ligament, which could have been due to an ankle sprain. The ligament was, however, in tact and a sprain would have resulted in symptoms for at most a few weeks. Her physician noted that the complaints of defuse pain did not make any sense theologically and he noted symptom magnification, which Carr concurred. He concluded "there is no objective evidence of any ongoing abnormality in the ankle beyond the degenerative disease" and that "there is no objective evidence of any ongoing issue in the neck beyond degenerative disease." He further found that the degenerative condition was not related to this claim and that "there is thus obviously no causally related impairment, permanency or disability from this claim" and "there is no reason that the patient needed to be taken out of work more than two years after the claim simply by her request. That does not equate to disability."

The defendant has met his burden on this motion for summary judgment concerning serious injury by making a prima facie showing of entitlement to judgment as a matter of law by submitting evidence in admissible form showing that plaintiff has not sustained a serious injury under Insurance Law section 5102(d). See, Owens v. Nolan, 269 AD2d 794 (4th Dept. 2002). The affirmed report of Dr. Carr and plaintiff's deposition are sufficient to meet that burden. See, Gaddy v. Eyler, 79 NY2d 955 (1992). The defendant has also met his burden through the submission of an attorney's affirmation indicating plaintiff's own medical records and the reports of plaintiff's own doctors do not indicate that plaintiff suffered a serious injury and that they were not causally related to the alleged accident. See, Francini v. Palmeiri, 1 NY3d 536 (2003).

With respect to the permanent loss of use category, the defendant has established that plaintiff's sworn deposition testimony provides prima facie evidence that she did not sustain a permanent loss of use of the neck, back, legs and arms as alleged in her bill of particulars. She testified that she continued to work for the next two years, until August 20, 2012, missing only a few days after the subject accident of injuries allegedly sustained and subsequently requested a work release from her doctor after sustaining two separate work related injuries. Plaintiff further testified that she traveled to Cuba where she visited for fifteen days in May of 2014 and admitted she did all the grocery shopping without assistance. In addition, the Carr IME presents prima facie evidence with respect to this category inasmuch as Carr found that the x-rays of the right hand and left ankle performed on June 1, 2010 were normal, the cervical spine films showed no acute findings, that a June 2, 2010 cervical spine x-ray showed a minimal C5-6 sponleothesis, [*3]that a June 15, 2010 cervical CT showed no acute abnormalities and that a September 9, 2010 CT Scan of the left foot and ankle showed no bony abnormalities. He also noted that the August 12, 2012 MRI of the cervical spine showed degenerative disc desiccation C2-C6 with some disc bulging and uncovertebral osteophytes and there were no disc herniations. Courts are hesitant to find a serious injury under this category where plaintiff suffered a soft tissue injury such as herniated or bulging discs. See, Slisz v. Miga, 14 AD3d 953 (4th Dept. 2005). Thus the defendant has demonstrated in the first instance that plaintiff cannot satisfy the total loss of use required under this category. See, Oberly v. Bangs Ambulance, 96 NY2d 295 (2001).

The defendant has likewise met its burden with respect to the permanent consequential limitation category concerning the same body parts. The defendant has established in the first instance that the allegations are unsupported by objective medical evidence. Plaintiff is required to show objective quantitative evidence with respect to a diminished range of motion or qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body, organ, member, function or system. See, Toure v. Avid Rent-A-Car Systems, 98 NY2d 345 (2002). A minor, mild or slight limitation of use is insignificant and permanency alone is insufficient to render an injury a permanent consequential limitation of use. See, Barres v. Richer, 85 AD3d 1628 (4th Dept. 2011). Mere soft tissue injury, even if persistent or protracted does not qualify in the absence of competent medical evidence establishing a meaningful impairment or limitation as a result of the pain. See, Wrath v. Shafer, 267 AD2d 565 (3rd Dept. 1999). The Carr IME revealed plaintiff's qualitative range of motion with respect to her ankle was better than normal. Although plaintiff exhibited a lower than normal range of motion in her neck, Carr attributed it to her guarding it quite a bit and that she "markedly self limits her movements" and he found no objective evidence of any ongoing abnormality or issue with respect to the body parts, other than degenerative disease. He further noted the degenerative condition was not related to this claim. It is argued therefore that plaintiff cannot show that the injuries are both permanent and consequential. See, Cullen v. Treen, 30 AD3d 1086 (4th Dept. 2006).

With respect to significant limitation of use category, that term must be construed to mean something more than a mild limitation of use. See, Licari v. Elliott, 57 NY2d 230 (1982). Determination of what constitutes medical significance involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part. See, Dufel v. Green, 84 NY2d 795 (1995). Subjective complaints of pain without objective medical evidence are insufficient to establish a serious injury. See, Scheer v. Koubeck, 70 NY2d 678 (1987). The defendant has met its burden in establishing that plaintiff cannot meet the category because although she set forth numerous subjective complaints of pain there is no objective medical evidence to support it.

Defendant has also shown in the first instance that the plaintiff cannot satisfy the requirements of the 90/180 category, which requires a showing of a medically determined injury or impairment of a nonpermanent nature which prevents her from performing substantially all of the material acts which constitute her usual and customary daily activities at least 90 out of the 180 days immediately following the accident. See, Licari, supra. When construing the statutory definition of a 90/180 claim, the words "substantially all" should be construed to mean that the person had been prevented from performing her ususal activities to a great extent rather than [*4]some slight curtailment. See, Thompson v. Abbasi, 15 AD3d 95 (1st Dept. 2005). A defendant may make a prima facie showing by submitting excerpts from plaintiff's deposition regarding the claimed limitations or an IME conclusion that the restrictions of plaintiff's activities were either self imposed or a lack of physiological basis. See, Parkhill v. Cleary, 305 AD2d 1088 (4th Dept. 2003); see also, Hartman-Jweid v. Overbough, 70 AD3d 1399 (4th Dept. 2010). The defendant has provided both here. Defendant demonstrated that plaintiff testified here that she continued two work two jobs through the 180 days after the accident and was not taken out of work until August of 2012, two years later, and that since it is undisputed that she worked without restrictions, she cannot satisfy this category. The IME provides further proof that the claimed injuries lack objective medical support since plaintiff's limitations were either self imposed or lacked a physiological basis. See, Hartman-Jweid, supra.

The defendant has likewise shown that the plaintiff's complaints of pain and resulting injuries are either a result of preexisting conditions, subsequently unrelated accidents and/or unexplained gaps in medical treatment. Even where there is objective medical proof, when additional contributory factors interrupt the chain of causation between the accident and the claimed injuries, such as a gap in treatment, intervening problems or a preexisting condition, summary dismissal of the complaint may be appropriate. See, Pommels v. Perez, 4 NY3d 566 (2005). In this case there is persuasive evidence that the plaintiff's alleged pain and injuries are related to such conditions, it is thus incumbent on the plaintiff to present competent medical evidence based upon objective findings and tests to support a serious injury claim and to connect the condition to the accident to survive summary judgment. See, id. The defendant contends here that as borne out by her medical records, plaintiff had a long history of back and shoulder ailments that existed prior to the accident. Carr's diagnosis of degenerative neck and ankle conditions confirm the existence of a preexisting injury and plaintiff not only admits in her pleadings to sustaining subsequent injuries to her finger and knee, but also produced medical records which confirm a severe knee injury and fractured index finger. Inasmuch as the defendant has met his burden in the first instance of establishing that the plaintiff cannot meet the definition of serious injury under the Insurance Law, the burden shifts to the plaintiff to raise an issue of fact.

Prior to opposing the defendant's motion, plaintiff cross-moved for summary judgment on the issue of negligence and with respect to serious injury. Plaintiff submits a police accident report and defendant's deposition testimony regarding the motion on the issue of negligence. Plaintiff submits only to her own affidavit and deposition testimony and provides no medical evidence to support her claims under any of the categories. According to plaintiff's affidavit, for the months following the accident working was painful and difficult and she used to be very efficient previously. She also alleges that her work performance drastically changed and that after the accident she was in so much pain she did not perform her duties that she used to and had to do everything in a slower pace and not the pace required by her employer. Plaintiff also indicates that she lost strength in her arms, had difficulty cleaning her house, showering and cooking and that she cannot concentrate or wear high heels anymore and can walk no more than two blocks before her foot gets swollen. According to plaintiff, she is a writer and even though she signed a contract for a book deal before the accident she has been unable to finish it, as she cannot type on the computer or concentrate due to her injuries. She further indicates that she [*5]falls down constantly and continues having pain in her left foot and neck, continues taking medication and was in good health and lived a normal life prior to the accident. Although the attorney's affidavit alleges that the plaintiff suffers disc bulging and left foot pain, no medical records are provided to support this claim. An attorney's affidavit alone is without evidentiary value. See, Deronde Products, Inc. v. Steve general Contractor, Inc., 302 AD2d 989 (4th Dept. 2003). Likewise, in her memorandum of law, plaintiff references certain medical providers but no there is no documentary support for the plaintiff's allegations. As such, the plaintiff has failed to meet her burden in the first instance with respect to this portion of the cross-motion and it is denied. See, Toure, supra.

Plaintiff likewise fails to meet her initial burden with respect to the negligence issue. Defendant raised the affirmative defense of an emergency situation or unavoidable accident in his Answer and bill of particulars. In addition, defendant testified that the car in front of him suddenly stopped causing his vehicle to make contact with the rear of the other vehicle, ultimately causing a chain reaction with another vehicle. Plaintiff failed to address defendant's non-negligent explanation for the collision and instead asserts there was no emergency situation because the police report notes that defendant was following too closely. Although a police report is generally admissible as a business record pursuant to CPLR section 4518, statements contained in the report concerning the cause of the accident constitute inadmissible hearsay where, as here, the officer did not witness the accident and was not qualified as an expert. See, Shaw v. Rosha Enterprises, Inc., 129 AD3d 1574 (4th Dept. 2015); see also, Huff v. Rodriguez, 45 AD3d 1430 (4th Dept. 2007). As such, plaintiff failed to meet her burden in the first instance on her cross-motion with respect to the issue of negligence.

Plaintiff subsequently opposed the defendant's motion for summary judgment on the issue of serious injury and her opposition is likewise insufficient. The plaintiff provides affidavits from counsel and as well as unsigned affidavits purportedly from two of her treating physicians, Ted Triana, M.D. and Pamela Sparks, D.P.M. Since the defendant has shown a lack of objective evidence of serious injury, plaintiff as the opponent of the motion is required to raise a triable issue of fact through the tender of admissible evidence. See, Hunt v. Kostarellis, 27 AD3d 1178 (4th Dept. 2006). An unsworn, unsigned affidavit of plaintiff's physician is insufficient to create a question of fact. See, Ziegler v. Ramadhan, 5 AD3d 1080 (4th Dept. 2004).^[FN1]

NOW, therefore, for the foregoing reasons, it is

ORDERED, that defendant's motion for summary judgment dismissal of the complaint on the ground of no serious injury is granted, and it is further

ORDERED, that the plaintiff's cross-motions for summary judgment on the issues of serious injury and negligence are denied.