SUPREME COURT OF THE STATE OF NEW YORK. Defendant. The followinl: papers have been read on this motion:

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1 SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: RON. DENISE L. SHER Acting Supreme Court Justice HEIDY T. JIMENEZ TRIAL/IAS PART 32 NASSAU COUNTY.. against - Plaintiff Index No.: 1729/09 Motion Seq. No. : 04 Motion Date: 12/09/1 0 PAMELA J. SALLAH Defendant. The followinl: papers have been read on this motion: Notice of Motion Affirmation and Exhibits Affrmation in O osition and Exhibits Reply Affirmation Papers Numbered Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendant moves, pursuant to CPLR 3212 and Aricle 51 of the Insurance Law of the State of New York for an order granting her sumar judgment on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law 51 02( d). Plaintiff opposes defendant' s motion. The above entitled action stems from personal injures allegedly sustained by plaintiff as a result of an automobile accident with defendant which occured on Februar , at or near the intersection of North Broadway and West John Street, Ricksvile, County of Nassau State of New York. At the time of the accident, defendant was the owner and operator of a 1999

2 Volvo, while plaintiff was the owner and operator of a 1999 Mercur. Plaintiff contends that her vehicle was struck in the rear by defendant' s vehicle while stopped at the intersection and, a few seconds after the first impact, her vehicle was struck in the rear a second time by defendant' vehicle. Plaintiff claims that, as a result of the impact from defendant' s vehicle striking her vehicle, she was thrst forward and backward inside said vehicle, with her shoulders striking the steering wheel, her back thrown against the seat and her right knee striking the dashboard. As a result of the accident, plaintiff claims that she sustained the following injuries: L5-S 1 Central Disc Protrusion; L4- L5 left Paracentral Disc Protrsion; Central Disc herniation at L5-:S 1 with ventral canal encroachment; Loss of normal cervical lordosis; Joint effusion of right knee; Left L4-L5 radiculopathy by EMG; Right lower cervical radiculitis; Lower back pain; Sleep disturbance; Radiating pain down left knee; Right knee tendonitis; Accelerationleceleration Injur from MV A; Cervical Segmental Dysfunction; Lumbar Segmental Dysfunction;

3 Cervical Radiculitis; Lumbosacral Radiculitis; Post-traumatic Headaches; Sciatica; Post traumatic subligamentous central lumbar disc herniation with ventral canal encroachment; Post traumatic Cervical myofascial derangement; Post traumatic thoracic myofascial derangement; Contusion to right knee; Right upper C5-6 radiculopathy per EMG; Pain; Suffering; Emotional distress. Plaintiff commenced the action with service of a Sumons and Verified Complaint on Januar 26, Issue was joined on July 16, It is well settled that the proponent of a motion for sumar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing suffcient evidence to demonstrate the absence of material issues of fact. See Silman v. Twentieth Century- Fox Film Corp. 3 N.Y.2d 395, 165 N.Y.S. 2d 498 (1957); Alvarez v. Prospect Hospital, 68 N. 2d N. S.2d 923 (1986); Zuckerman v. City of New York 49 N. Y.2d N. Y.S.2d 595 (1980); Bhatti v. Roche 140 A.D. 2d N. 2d 1020 (2d Dept. 1988). To obtan summar judgment, the moving par must establish its claim or defense by

4 tendering sufficient evidentiar proof, in admissible form, sufficient to warant the cour, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. Associated Fur Mfrs., Inc. 46 N. Y.2d N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof anexed to an attorney s affirmation. See CPLR ~ 3212 (b); Olan v. Farrell Lines Inc., 64 N. Y.2d N. S.2d 884 (1985). If a sufficient prima facie showing is demonstrated, the burden then shifts to the nonmoving par to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarly precludes the granting of summar judgment and necessitates a trial. See Zuckerman v. City of New York 49 N. Y.2d 557, 427 S.2d 595 (1980), supra. When considering a motion for sumar judgment, the fuction of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. See Silman v. Twentieth Century- Fox Film Corp. 3 N. Y.2d 395, 165 N. S.2d 498(1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. 2d N.Y.S. 2d 793 (1988). Further, to grant summar judgment, it must clearly appear that no material triable issue offact is presented. The burden on the cour in deciding this tye of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d N. 2d 665 (1980); Daliendo v. Johnson, 147 D.2d N. 2d 987 (2d Dept. 1989). Within the paricular context of a threshold motion which seeks dismissal of a personal injur complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injur" as enumerated in Aricle 51 of the Insurance Law 51 02( d). See Gaddy v. Eyler 79 N. Y.2d N.Y.S.2d 990 (1992). Upon such a showing, it becomes

5 incumbent upon the non-moving par to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a " serious injur. See Licari v. Ellott 57 N.Y.2d N. Y.S. 2d 570 (1982). In support of a claim that the plaintiff has not sustaned a serious injur, a defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports ofthe plaintiffs examining physicians. See Pagano v. Kingsbury, 182 AD.2d 268, 587 Y.S.2d 692 (2d Dept. 1992). However, unlike the movant's proof, unsworn reports of the plaintiff s examining doctors or chiropractors are not sufficient to defeat a motion for sumar judgment. See Grasso v. Angerami 79 N.Y.2d N. S.2d 178 (1991). Essentially, in order to satisfy the statutory serious injur theshold, the legislature requires objective proof of a plaintiffs injur. The Cour of Appeals in Toure v. Avis Rent-a- Car Systems 98 N. 2d 345, 746 N. 2d 865 (2002) stated that a plaintiffs proof of injur must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor s observations durng the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if. both sides rely on those reports. See Gonzalez v. Vasquez 301 AD.2d N.Y.S.2d 7 (1 Dept. 2003). Conversely, even where there is ample proof of a plaintiffs injur, certain factors may nonetheless override a plaintiffs objective medical proof oflimitations and permit dismissal of a plaintiff s complaint. Specifically, additional contributing factors such as a gap in treatment an intervening medical problem or a pre-existing condition would interrpt the chain of causation between the accident and the claimed injur. See Pommel/s v. Perez 4 N. Y.3d N. 2d 380 (2005).

6 Plaintiff claims that as a consequence of the above described automobile accident with defendant, she has sustained serious injuries as defined in New York State Insurance Law 5l02(d)and which fall within the following statutory categories of injuries: 1) a permanent consequential limitation of use of a body organ or member; (Category 7) 2) a significant limitation of use of a body fuction or system; (Category 3) a medically determined injur or impairment of a non-permanent natue which prevents the injured person from performing substatially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence of the injur or impairment.(category 9). As previously stated, to meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body fuction or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injur or condition. See Gaddy v. Eyler 79 N. Y.2d 955, 582 N.Y.S.2d 990 (1992); Licari v. Ellot 57 N. Y.2d 230, 455 N. Y. 2d 570 (1982). A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. See Licari v. Ellot supra. A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body fuction or system " categories can be made by an expert' s designation of a numeric percentage of a plaintiff s loss of motion in order to prove the extent or degree of the physical limitation. See Toure v. Avis, supra. In addition, an expert' s qualitative assessment of a plaintiffs condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiffs limitation to the

7 normal fuction, purose and use of the affected body organ, member, fuction or system. See Finally, to prevail under the "medically determined injur or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence of the injur or impairment" category, a plaintiff must demonstrate though competent, objective proof, a "medically determined injur or impaient of a non-permanent nature" (Insurance Law ~ 5l02(d)) "which would have caused the alleged limitations on the plaintiffs daily activities. See Monkv. Dupuis 287 A.D.2d 187, 734 N. 2d 684 (3d Dept. 2001). A curailment of the plaintiffs usual activities must be "to a great extent rather than some slight curtilment." See Licari v. Ellott, supra at 236. With these guidelines in mind, the Cour wil now tur to the merits of defendant' motion. In support of her motion, defendant submits the pleadings, plaintiff s Verified Bil Pariculars, the No Fault Verification of Treatment Form prepared by Dr. Christopher Whyte on April 14, 2006, the report of Dr. Mitchell Cohn of Alliance Medical Technology dated September , the affrmed report of Eric L. Freeman, M., who performed an independent orthopedic medical examination of plaintiff on May 26, 2010, the affirmed reports of Melissa Sapan Cohn, M., who reviewed plaintiffs cervical spine MRI which was performed on March 22, 2006, plaintiff s two lumbosacral spine MRIs which were performed on March 25, 2006 and Februar 6, 2009 and plaintiffs right knee MRI which was performed on April 3, When moving for dismissal of a personal injur complaint, the movant bears a specific

8 burden of establishing that the plaintiff did not sustain a serious injur. See Gaddy v. Eyler, 79 Y.2d N.Y.S.2d 990 (1992). Within the scope of the movants' burden, a defendant's medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff s range of motion, must compare any findings to those ranges of motion considered normal for the paricular body part. See Gastaldi v. Chen 56 A.D.3d N. 2d 750 (2d Dept. 2008); Malave v. Basikov, 45 D.3d N.Y.S. 2d 415 (2d Dept. 2007); Nociforo v. Penna 42 AD.3d Y.S.2d 396 (2d Dept. 2007); Meiheng Qu v. Doshna 12 AD.3d 578, 785 N.Y.S.2d 112 (2d Dept. 2004); Browdame v. Candura 25 AD.3d N. S.2d 658 (2d Dept. 2006); Mondi v. Keahan 32 AD.3d N. 2d 625 (2d Dept. 2006). Based upon this evidence, the Cour finds that the defendant has established a prima facie case that plaintiff did not sustain serious injur within the meanng of New York State Insurance Law ~ 51 02( d). Defendant submits the No Fault Verification of Treatment Form prepared on April by Dr. Christopher Whyte, plaintiffs treating chiropractor, as evidence that plaintiff did not suffer a serious injur under the seventh and eighth categories of Insurance Law ~ 1502( d). Said report was filled out less than two months after the subject accident. Defendant submits that Question lion the form asks (w)il injur result in significant disfiguement or permanent disabilty?" to which Dr. Whyte answered No. " Question 14 on the form asks (w)il the patient require rehabilitation and/or occupational therapy as a result ofthe injuries sustained the accident?" to which Dr. Whyte answered No." Defendant argues that these answers provided by plaintiffs treating doctor, as to the extent of her injures, demonstrate that plaintiff did not suffer a serious injury. See Defendant's Affirmation in Support Exhibit E.

9 , " Defendant furher argues that plaintiff s admissions to another of her treating physicians Dr. Mitchell Cohn, demonstrate that she suffered a subsequent injur to her back, the same body par she allegedly injured in the subject accident. On September , plaintiff consulted with Dr. Cohn for an initial evaluation. Plaintiff presented with complaints of lower back pain and bilateral back pain. Dr. Cohn reported that plaintiff was in her usual state of health until approximately two weeks prior to the visit when, while exercising and weightlfting, plaintiff developed lower back pain. Defendant submits that plaintiffs alleged admission to Dr. Cohn about an injur suffered to her back, the same body par she allegedly injured in the subject accident, demonstrates that she did not suffer a serious injur that is casually related to the subject accident. See Defendant's Affirmation in Support Exhibit F. Dr. Eric L. Freeman, a board certified orthopedist, reviewed plaintiffs medical records and conducted a physical examination of plaintiff on May See Defendant' Affirmation in Support Exhibit G. Dr. Freeman examined plaintiff and performed quantified and comparative range of motion tests on plaintiffs cervical spine, right and left shoulder lumbosacral spine and right knee. The results of the tests indicated no deviations from normal. Dr. Freeman concluded (t)he patient is a curent 29-year-old female who alleges involvement in a motor vehicle accident that occured on 02/22/06. She had a physical examination directed towards the affected body pars and was found to have residual only in mild rotational loss in the lumbar spine. She had negative nerve tension signs in the upper and lower extremities negative pain to palpation in the cervical and lumbar regions, and she has negative loss of sensation or motor strength in the upper or lower extremities. Although there is documentation on an MRI after the motor vehicle accident of a lumbar herniated disc, there is some discrepancy and on a follow-up MRI of the lumbar spine in 2009, Februar 6, there is no evidence of disc

10 herniation but rather only a protrusion. Additionally, the MRI ofthe knee was within normal limits and the MRI of the cervical spine that was performed revealed muscular changes without any tye of disc changes. Curently the claimant is fuctioning in full capacity at work. She does. utilze Tylenol for pain. She has a good prognosis. Again, the only residua that has been determined is that of lumbar restriction of motion secondar to protrsion documented by MRI. On the basis of my examination, she has no residua of the cervical spine, right and left shoulder or of the right knee. The prognosis is good for the aforementioned claimant." Dr. Melissa Sapan Cohn, a board certified radiologist, conducted an independent fim review of the MRI of plaintiff s cervical spine which was performed on March 22, 2006 plaintiffs two lumbosacral spine MRIs which were performed on March and Februar 2009 and plaintiffs right knee MRI which was performed on April 3, See Defendant' Affrmation in Support Exhibit H. With respect to her review of the cervical spine MRI, Dr. Sapan Cohn' s findings were "(t)here is minimal straightening of the normal cervical lordosis. The disc spaces are well maintained. There is no evidence of disc herniation or disc bulge. No central canal or neural foraminal compromise is present. The marow sign is normal. No intrinsic spinal cord abnormality is identifed. Impression: Mild straightening of the normal cervical lordosis. Otherwse unemarkable cervical spine MRI. Discussion: There is mild straightening ofthe normal cervical lordosis. This may reflect muscular spasm. Alternatively, this may be the result of positioning of the patient's neck within the cervical coil necessar to perform the examination. The cervical spine is otherwse unemarkable in appearance. There is no evidence for pathology or acute trauma related injur on the submitted study." With respect to the two MRIs of plaintiffs lumbar spine originally performed on March and February , Dr. Sapan Cohn' s findings were "Lumbosacral Spine MRI Number l...the 10-

11 effaces the ventral aspect of the theocal sac. L5- S 1 central disc herniation effaces the epidural fat. Discussion: In the interval since the prior study of 2/6/2009, the patient has developed a new left parasagittal disc herniation at the L4- L5 level. The exact time when the disc herniation occured is impossible to completely determine. It can be said with certainty that it was not present on the study of 3/25/2006, but rather occured somewhere after that time. Since the disc herniation was not present on the study of 3/25/2006, it could not have been related to the motor vehicle accident of 2/22/2006, as the disc herniation would have been present on the initial MR!. The L5- S 1 disc herniation remains stable in appearance. In my opinion, the patient has developed a new disc herniation which occured somewhere afer the initial lumbosacral spine MRI of 3/25/2006. This was no present on the initial examination. This would not have been normal lumbar lordosis is maintained. The LI-, L2-, L3-4 and L4-5 disc spaces are within normal limits. At the L5- S 1 level, there is disc -desiccation. The central disc herniation mildly effaces the epidural fat...impression: L5- S 1 central disc hernation. Discussion: This patient has evidence of a disc herniation at the L5- S 1 level. This is associated with underlying disc desiccation. Disc desiccation indicates that the disc has dried out and lost its normal water content. This is the commencement of degenerative disc disease. The association of the disc herniation with disc desiccation suggests that it is chronic in nature...in my opinion, this patient does have a disc herniation at the L5- S 1 level. This is associated with underlying degenerative changes, suggesting that it is chronic in nature. Lumbosacral Spine MRI Number 2...The normal lumbar lordosis is maintained. The LI-, L2-3 and L3-4 disc spaces are normal. At the L5- level, there is a new left parasagittal disc herniation effacing the ventral aspect of the thecal sac. At the L5- S 1 level, there is disc desiccation. The central disc herniation effaces the epidural fat. This is unchanged compared to prior study...impression: L4-5 left parasagittal disc herniation..11-

12 , " related to the c accident of 2/22/06." With respect to her review of the right knee MRI, Dr. Sapan Cohn' s findings were (t)he anterior and posterior crucial ligaments are intact. The extensor mechanism is within normal limits. The medial and lateral collateral ligaments are normal in appearance. There is no evidence ofmeniscal tear. The marow signal is normal. A trace amount of fluid is present within the superpatellar bursa. The soft tissues are normal. Impression: Trace joint effusion. Discussion: The only finding on the submitted knee MRI is the presence of a very small amount of fluid, located withn the joint space. This is minimal in nature and unlikely to be of clinical significance. All the underlying tendonous, carilaginous and osseous structues are normal. In my opinion, this is essentially a normal right knee MR!. There is no evidence for acute trauma related injur on the submitted study. With respect to plaintiff s 90/180 claim, defendant argues that the No-Fault Verification of Treatment Form filed out by plaintiffs treating chiropractor and plaintiffs Verified Bil of Pariculars establish that plaintiff did not sustain an injur that prevented her from performing substatially all of her customar daily activities for least 90 days of the 180 days immediately after the accident. Specifically, in paragraphs 6 and 7a of plaintiff s Verified Bil of Pariculars she admits that at the time of the accident, she was employed as a technical coordinator at Cascade Water Services. Plaintiff also admits in herbil of Pariculars that she was confined to her house and bed for only thee days after the accident. See Defendant' s Affirmation in Support Exhibit D. Additionally, on the No-Fault Verification of Treatment Form filled out by Dr. Whyte on April 14, 2006, less than two months after the accident, he wrote that plaintiff was disabled only from Februar until Februar He also wrote that plaintiff would be able to return to work on Februar , only five days after the accident. See Defendant's Affrmation in Support Exhibit E. Defendant argues that being unable to work for 12-

13 approximately five days does not satisfy the standard for "serious injur" under the ninth category of Insurance Law ~ l502( d). The burden now shifts to the plaintiff to come forward with evidence to overcome defendant' s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. See Pommel/s v. Perez 4 N. 3d 566, 797 N. S.2d 380 (2005); Grossman v. Wright 268 A. 2d 79, 707 N. Y.S. 2d 233 (2d Dept. 2000). In opposition to defendant' s motion, plaintiff argues that defendant's motion must be denied since plaintiff can establish a prima facie case that she satisfied the serious injur theshold to maintain her action. To support her burden, plaintiff submits the transcript of her testimony at her Examination Before Trial ("EBT"), the affidavit and records of Dr. Christopher Whyte plaintiffs' Verified Bil of Pariculars, the reports of Michele Rubin, M., who performed plaintiffs lumbosacral spine MRI on March and plaintiffs cervical spine MRI performed on March , the report of George J. Cavaliere, M., who performed plaintiffs right knee MRI on April 3, 2006, the affirmation and records of Dr. Magda Fahy, the affirmations of Dr. Joseph Gregorace and the affirmation and records of Dr. Engracia Lazatin. Plaintiff submits that, two days afer the subject accident, due to persistent pain and symptoms, she visited Dr. Christopher Whyte for an initial consultation. She presented with pain in the lower back, right knee, right shoulder and headaches. Plaintiff submits that she has undergone extensive physical therapy for the past five years and that she is stil curently treating once per week with Advanced Multi Medicine under the care of Dr. Engracia Lazatin. Plaintiff states that she was initially treated for five months with Dr. Whyte, but stopped said treatment with Dr. Whyte because her no fault insurance refused to fuher pay for such 13-

14 treatment. Plaintiff argues that the termination of her treatment after the five months has not resulted in any significant gap in treatment because she has been treated for her injuries quite frequently during the past five years. Plaintiff also argues that "(i)n support of its motion for sumar judgment dismissing the complaint, the defendant failed to make a prima facie showing that the plaintiff did not sustain a serious injur within the meaning of Insurance Law ~ 5102(d) as a result of the subject accident. The defendant never clearly addressed the claim, clearly set forth in the plaintiffs verified bil of pariculars, paragraph 16, that the plaintiff sustained a medically-determined injur or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customar daily activities for not less than 90 days durng the 180 days immediately following the accident...defendant's physician (Dr. Eric L. Freeman-Exhibit G of defendant's motion), failed to relate his medical findings to this category of serious injur for the period oftime immediately following the accident." Plaintiff contends that at her EBT, she testified that she was not able to perform her usual activities as she did before the accident, specifically daily rung, lifting heavy objects such as a box of paper, intimacy, dacing on weekends and doing laundry. See Plaintiffs Affirmation in Opposition Exhibit A. Plaintiff fuher contends that the report of defendant' s doctor, Dr. Freeman, finds limitation of movement of plaintiff s lumbar spine four years after the subject accident. Christopher Whyte, D., a duly licensed chiropractor, examined plaintiff on Februar, 2006 for chiropractic medical evaluation, rehabiltation and treatment for her alleged injuries from the accident in issue. Plaintiff presented with complaints of neck and lower back pain and right knee pain. Dr. Whyte performed quantified and comparative range of motion tests on 14-

15 plaintiffs lumbar spine which indicated quantified limitations and abnormal findings. Dr. Whyte treated plaintiff for her injuries until April 23, Dr. Whyte also stated in his affidavit (l)et it be known that since plaintiff was diagnosed with a herniation at L5- S 1, and herniations are not known to ' heal themselves' and are therefore a permanent injur, and if it is true that Ms. Jimenez stil has limitations of movement in her lumbar spine attibutable to the injur, it is my opinion that she has sustained a permanent parial disability of her lumbar spine. Let it be known that when I answered ' ' to the question contained on the subject ' Verification of no fault treatment form" which asks the question Wil the injur result in significant disfiguement or permanent disability?" I did not mean to opine that the herniation in Ms. Jimenez (sic) spine could not cause a permanent parial disability of her lumbar spine. If called to testify I would state same herein. See Plaintiffs Affrmation in Opposition Exhibit R Plaintiff submitted the reports of Dr. Michele Rubin, a board certified neuroradiologist with Excel Radiology Services, P., under whose auspices administered and supervised the administration and examination of the MRIs of plaintiff s lumbosacral spine performed on March and plaintiffs cervical spine performed on March See Plaintiffs Affirmation in Opposition Exhibit D. With respect to the MR of the lumbosacral spine, the impression was (c)entral disc herniation at L5-, with ventral canal encroachment." With respect to the MRI of the cervical spine, the impression was "(l)oss of the normal cervical lordosis, which may be related to muscle spasm/pain. Mildly decreased TI marow signal, as described. Please correlate clinically. Plaintiff also submitted the report of Dr. George J. Cavaliere, a board certified radiologist with Island Diagnostic Imaging Associates, under whose auspices administered and supervised the administration and examination of the MRI of plaintiffs right knee performed on 15-

16 April 3, Dr. Cavaliere s impress was (t)iny joint effsion. No evidence of a meniscal or ligamentous tear. See Plaintiffs Affirmation in Opposition Exhibit D. Dr. Magda Fahy, a physician, who maintains her office at Alliance Medical Technology, states in her affrmatiol1 that plaintiff came to the Allance Medical Technology offces on March 22, 2006 to receive treatment for injures she sustained as a result of the subject car accident. On that date, Dr. Fahy performed quantified and comparative range of motion tests on plaintiffs lumbar spine which indicated quantified limitations and abnormal findings. See Plaintiff s Affirmation in Opposition Exhibit E. Dr. Joseph Gregorace examined plaintiff on Janua 19, Plaintiff presented with continued pain in her lower back that travels down her left leg. Plaintiff indicated to Dr. Gregorace that she was in good health and had no physical complaints prior to sustaining injures in the subject motor vehicle accident. Dr. Gregorace performed quantified and comparative range of motion tests on plaintiff s lumbar spine which indicated quantified limitations and abnormal findings. See Plaintiffs Affirmation in Opposition Exhibit F. Dr. Gregorace added that "(t)here was also tenderness and spasms along the mid to low lumbar spine. Also, the Straight Leg raise test was positive on the left leg at 60 degrees. " Dr. Gregorace states (b)asedupon her previous care, my recent examination, and medical history, I have determined that the injuries sustained by Ms. Jimenez are a direct result of the accident she was involved in on Februar 22, 2006, and that the injuries she sustained are consistent with how the accident occured. Ms. Jimenez s complaints and the testing I conducted are consistent with the results of her MR and Range of Motion Testing and clearly indicate that he (sic) continues to suffer as a result ofthe motor vehicle accident that occured on Febru 22, Based upon the fact that these restrictions are occurring more than three (3) years past his (sic) injur, they 16-

17 , ", " obviously constitute a permanent 10ss...It is my opinion, based upon a reasonable degree of medical certinty, that Ms. Jimenez has sustained injuries that limit her functions and daily activities with respect to her lower back, which are serious and permanent in nature, and that there is a direct causal relationship between Ms. Jimenez s curent condition and the motor vehicle accident of Februar See id. Dr. Engracia Lazatin, a specialist in physical medicine and rehabiltation, examined plaintiff on March 16, Dr. Lazatin states that (p)laintiffs examination revealed mid and low back pain that radiates to her right leg. She also has paresthesia on the left lower extremity up to the toes." Dr. Lazatin performed quantified and comparative range of motion tests on plaintiff s lumbar spine which indicated quantified limitations and abnormal findings. See Plaintiffs Affirmation in Opposition Exhibit G. Dr. Lazatin adds that (s)traight leg test positive at 45 degrees, Kemps sign was positive bilaterally and Double leg test was positive. Dr. Lazatin states the deficiencies in Heidy T. Jiminez (sic) range of motion are, in my medical opinion, consistent with the objective test findings set fort above and therein are directly related to the Februar accident.. The loss in mobility Heidy T. Jiminez (sic) suffers, is without question in my mind, significant and permanent. Heidy T. Jiminez (sic) will likely live the rest of her life with significantly and painflly reduced range of motion in her lumbar spine. See id Withe respect to defendant' s allegations that plaintiff had a subsequent injur, plaintiff argues that this is inaccurate according to plaintiffs sworn testimony (see Plaintiffs Affrmation in Opposition Exhibit A) and "it is probably a tyo in the records of Allance Medical." Plaintiff contends (t)he record of Allance Medical, made by Dr. Mitchell Cohn on September , mentions that Ms. Jimenez is there dueto a weightlifting incident. Plaintiff 17-

18 vehemently denies that she 'hur herselfweightlifting.' She went to Dr. Mitchell Cohen for treatment for her injuries caused by the accident of Februar However, either Dr. Cohn made a tyo and left a description of accident in his report which applied to another patient or his biling employee made up a reason for Ms. Jimenez s treatment other than a car accident so that her employee insurance, Aetna Insurance, would not deny the claim and tell them to look to the no-fault carer for insurance payment...there is no record ofplaintifftellng such medical offces that she was involved in any other accident other than the motor vehicle accident of 2/22/06. In reply to plaintiff s argument that defendant never clearly addressed the claim that the plaintiff sustained a medically-determined injur or impairment of a nonpermanent natue which prevented her from performing substantially all of the material acts which constituted her usual and customar daily activities for not less than 90 days during the 180 days immediately following the accident because defendant' s physician, Dr. Eric L. Freeman, failed to relate his medical findings to this category of serious injur for the period oftime immediately following the accident, defendant states that she did not attempt to rely upon Dr. Freeman s report in establishing a prima facie case under this category. Defendant asserts that the admissions in the Verified Bil of Pariculars, as well as the records ofplaintiffs own chiropractor, Dr. Whyte establish that plaintiff was not disabled for more than five days following the accident. The Cour concludes that the affirmations, affidavits and accompanying records provided by plaintiff clearly raise genuine issues of fact as to injures causally related to the Februar accident. Consequently, defendant's motion for summar judgment is hereby denied. 18-

19 The paries shall appear for Trial in Nassau County Supreme Cour, Central Jur Par, at 100 Supreme Cour Drive, Mineola, New York, on October , at 9:30 a. This constitutes the Decision and Order of this Cour. Dated: Mineola, New York June 7, 2011 ENTfPRI;D JUN NA$ AU COUNTY COUNTY CLERK'. OFFJCE 19-