TFU/D\S, PART 6 NASSAU COUNTY. INEX No /04. In this action plaintiff seeks to recover damages for personal injures allegedly sustained by the

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1 SHORT FORM ORDER Present: SUPREME COURT - STATE OF NEW YORK RON. GEOFFREY J. O' CONNELL Justice ELLEN M. DeCARO -against- Plaintiff( s), TFU/D\S, PART 6 NASSAU COUNTY INEX No /04 THREE J. LEASING CORP. and ANTHONY BASSI MOTION DATE: 8/9/06 Defendant(s). MOTION SEQ. No. 1- The following papers read on this motion: Notice of Motion/Affirmation/Exhibits Affirmation in Opposition/xhibits Reply In this action plaintiff seeks to recover damages for personal injures allegedly sustained by the plaintiff as a result of an automobile collsion which occurred on March 12, 2004 at or near the intersection of West Park Avenue and Arzona Avenue, in Long Beach, New York. In this motion defendants seek an Order granting them sumar judgment dismissing the action. They contend that the plaintiff cannot establish that she suffered the necessary threshold serious physical injuries to continue this action. CPLR Insurance Law Plaintiff opposes. In her Verified Bil of Pariculars, plaintiff ELLEN DeCARO alleges that as a result ofthe underlying collision she suffered cervical sprain/strain, muscle spasm with pain and restriction of motion, straightening ofthe cervical lordosis, cervical myofascitis and disc syndrome, lumbosacral spine derangement with sprain 3212

2 DeCarlo v. Three J. Leasing COrD., et al. disc bulges at L4-5 and L5- S 1, limitation of movement, and significant impairment of strength and function. (Motion, Exh. C). At her deposition the plaintifftestified that the police arved at the scene ofthe accident at which time she described the accident to them. She testified that she was not bleeding and she did not lose consciousness. She testified that she went to the Emergency Room ofthe Long Beach Medical Center where she was treated and released. Plaintiff testified that she missed approximately 30 days of work after the accident. She further testified that she was treated by a medical doctor and underwent physical therapy for approximately one year after the accident. She complained of neck, back and left shoulder pain. She also claims that a few weeks after the accident she began to feel that a prior right shoulder injur was aggravated. Plaintiff underwent an MRI of her lumbar spine. An MR report of plaintiffs lumbar spine showed a disc bulge at L4- S 1, and noted degenerative changes at that location. (Motion, Exh. F) In support of their motion for summar judgment, defendants provide a sworn report from a neurologist, Dr. Sarasavani Jayaram who examined plaintiff on March The neurologist states that prior to the examination she reviewed all of plaintiffs medical records. This neurologist noted plaintiffs account of the accident and curent complaints of headaches and pain to her neck, lower back and both shoulders. The neurologist performed a physical examination which revealed normal range of motion to plaintiffs neck, a normal thoracic examination, and a finding that plaintiffs lumbar spine was also within normal limits. The neurologist noted no paravertebral spasms and noted a negative straight leg raising. She concluded that plaintiff had normal neurological fuction, and no focal defects. She found the plaintiff neurologically intact with no need for further testing or treatment. Plaintiff also provides an affrmation from an orthopedic surgeon, Dr. Wayne Kerness, who examined plaintiff on March Dr. Kemess states that he reviewed plaintiff s medical records and discussed the underlying accident with her. Dr. Kerness states that he performed a full orthopedic examination of the plaintiff and found plaintiff in no apparent distress or discomfort. He found her range of motion in her cervical, lumbar and thoracic spine within normal limits. He noted no tenderness to her shoulders or rotator

3 DeCarlo v Three J. Leasing COI'.. et al. cuff. The orthopedic surgeon found no evidence or spasms. He diagnosed plaintiff with having suffered cervical sprains which had resolved. He concluded that she was not in need of any further treatment or therapy, did not need any restrictions on her normal activities and was suffering no permanent or residual mjunes. Finally, defendants produced affrmations from a Board certified radiologist Dr. Roger Berg, who studied the fims from plaintiffs brain MRI and lumbar MRI. He concludes that the films reveal a disc desiccation with bulging at L5- S 1, which is a mild degenerative change and not traumatically induced from this accident. Plaintiff opposes dismissal, contending that there is a triable issue of fact whether she suffered the requisite threshold injures as a result of this accident. She states that she stil experiences pain and is no longer able to play tennis. In support of the opposition plaintiff provides an affirmation from her treating physician Dr. Proceso Vilarca, who states that his offce began treating plaintiff on March 17, On that date he states that she was examined by a neurologist, whom he does not identify. He states that he first examined plaintiff on April 20, 2004 at which time he noted plaintiffs subjective complaints of pain in her neck and lower back. He found that her range of motion to her cervical and lumbar spines were outside the range of normal. He states that the plaintiff informed him that she had no prior injuries. He states that at this time he diagnosed plaintiff with only "possible" injures, but recommended that she undergo x-rays and an MR of her cervical spine, and recommended continuation of physical therapy. (Opposition, Exh. D) The Doctor states that he later reviewed the MRI report, not the fims, and concluded, based partly on plaintiffs statements that she had no prior injuries, that she suffered a significant loss of the use of her cervical and lumbar spine as a result of the collsion. There is no indication that he personally examined the plaintiff after April 20, 2004, only a few months after the accident and more than two years prior to the date of his affdavit. He notes that she stopped physical therapy approximately five months after the accident, as it was no longer beneficial. (Opposition, Exh. D) The doctor without any recent examination or the plaintiff, states that the plaintiff stil continues to complain of pain. He states that he found restrictions to her cervical and lumbosacral spine. He concludes that these limitations are permanent and significant and caused by the automobile collision, and speculates over

4 DeCarlo v. Three J. Leasing COfR.. et al. potential problems plaintiff may suffer in the future. He does not state that the plaintiff is in need of any current treatment, and does not note any objective diagnostic tests performed since 2004 to confirm the stated limitations based on plaintiffs pain. (Opposition, Exh. D). The Court notes that the diagnosis of disc injuries is apparently based on the physician s reliance on unsworn reports of plaintiffs MRI, not on any personal examination of the fims. Plaintiff also provides unsworn medical reports, all made shortly after the accident, including unsworn MRI reports. These records are not properly before the Cour for consideration. There are no records of any current treatment or examination of the plaintiff. As to the claim of permanent injures, counsel for the defendants contends that the medical evidence presented is insufficient to demonstrate that the plaintiff suffered the requisite serious physical injuries as a result of this collsion, and therefore those claims alleged in the Complaint should be strcken pursuant to CPLR ~ 3212 and Insurance Law ~ Plaintiffs physician does not specifically identify plaintiffs current permanent serious disability caused by this accident. He notes pain and subjectively tested limitation, but no specific objective medical tests relied upon in concluding that the plaintiff suffers a consequential limitation and permanent disability. The failure to provide such objective medical evidence render the medical records provided insuffcient to defeat an otherwise meritorious motion for sumar judgment. Barbarulo v. Allery, 271 AD2d 897 (3rd Dept. 2000). A plaintiffs statements that he was otherwise limited due to his own subjective complaints of pain are also insuffcient to defeat sumar judgment. Georgia v. Ramautar 180 AD2d 713 (2nd Dept. 1992); Scheer v. Koubek 70 NY2d 678 (1987). The legislative intent underlying the no-fault law was to weed out frvolous claims and limit recovery to signficant injuries. As such, cours have required obj ective proof of a plaintiff' s injur in order to satisfy the statutory serious physical injury threshold. Subjective complaints alone are not suffcient. Toure v. Avis Rent A Car Systems, Inc. 98 NY2d 345 (2002). In order to find that an injury constitutes a permanent loss of a use of body par or organ, or fuction or system, the Cours have. determined that a plaintiff must establish that the loss is permanent and more than a mere limitation. It must be permanent and consequential.

5 Garlo v. Three J. Leasing COfR.,' et al. Oberly v. Bang s Ambulance 96 NY2d 295 (2001). There must be a medical showing that the limitation is significant. It is the burden of the plaintiff to establish his or her serious physical injury by providing the Court with objective medical evidence, that there is a degree and extent oflimitation of use and or function, which is permanent. An expert' s designation ofa numeric percentage ofa plaintiffs loss of range of motion can be used to substantiate a claim of serious injur, provided that the evaluation has an objective basis and compares the plaintiff s limitations to the normal function, purose and use of the affected body organ member, function or system. Toure v. Avis Rent A Car, supra. It must be a medical opinion supported by objective tests, such as x-rays, MRIs, Laseque tests or other recognzed tests with quantitative results. Such tests, to be considered by the Court must be provided in admissible form. Grasso v. Angerami 79 NY2d 813 (1991); Friedman v. Haul Truck Rental 216 AD2d 266 (2nd Dept. 1995); Pagano v. Kingsbury, 182 AD2d 268 (2nd Dept. 1992). The Courts required obj ective medical findings and diagnostic tests to support a plaintiff s complaints of pain and limitation. Such shall include: (1) a detailed percentage ofloss of range of motion; (2) objective orthopedic or neurological tests and results; (3) a medical opinion relating to those test results to the injures claimed; (4) proof establishing that the injuries were caused by the accident; (5) a sworn medical opinion that the injures are permanent Barbarulo v. Allery, supra; (6) be based on a recent examination; and (7) must explain any lapse or discontinuance of treatment. Grossman v. Wright 268 AD2d 79 (2nd Dept. 2000). Conclusory allegations that the plaintiffs' injures are " permanent" are insuffcient to make out a prima facie claim of serious injur to defeat a motion for sumar judgment. Licari v. Ellot 57 NY2d 678 (1987); Gaddy v. Eyler 79 NY2d 955 (1992); Georgia v. Ramautar 180 AD2d 713 (2nd Dept. 1992); Mobley Riportella 241 AD2d 443 (2nd Dept. 1997). A doctor must cite the objective tests performed on the injured plaintiff or specify not only the extent and degree of any limitation of movement ofthe left shoulder, but also its duration. Giannakis v. Paschlidou 212 AD2d 502 (2nd Dept. 1995); Weber v. H arbus 212 AD2d 525 (2nd Dept. 1995). The medical affrmation of plaintiff s physician as well as the other records provided by plaintiff in this instance, do not constitute competent evidence of a continued permanent" serious inj ury" for the puroses

6 DeCarlo v. 1. ee J. Leasing COlJ' 1 e al. of Insurance Law ~ 5102(d). Scheer v. Koubek 70 NY2d 678 (1987); Marshall v. Albano, 182 AD2d 614 (2nd Dept. 1992). As recently reaffrmed by the Cour of Appeals, in the context of soft-tissue injures, involving complaints of pain which are diffcult to observe or quantify, what constitutes a " serious injur" is vexing. The Cour of Appeals has stated that even where there is objective medical proof of injury, where additional contrbutory facts interrpt the chain of causation between the accident and claimed injury, such as a gap in treatment, an intervening medical problem or pre-existing condition sumar dismissal of a complaint may be appropriate. Pommells v. Perez, et al LEXIS 1041 (April 25, 2005). In Pommells the Court determined that a gap in treatment was in reality a cessation of treatment. It noted that while the law did not require a record of needless treatment in order to surive summar judgment a plaintiffwho terminates therapy following an accident must offer some reasonable explanation for having done so. Franchini v. Palmieri 1 NY3d 536 (2003). Where, as here, a plaintiff s treating physician notes that fuher treatment would only be pallative in nature, the Court found acceptable to explain a stoppage of treatment. However in this case there is medical evidence of pre-existing injures not addressed by either plaintiff s physician at all. As in Pommels and its companion case Carrasco v. Mendez, supra the plaintiff s submissions leave unanswered the question of whether the claimed symptoms were actually caused by the subject collsion orrelated to previous injures. Simms v. A. TruckLeasing Corp. 14 AD3d 322 (1 st Dept. 2005). In total, there is insufficient evidence to rebut that offered by the defendant to support a claim of serious permanent injuries and consequential limitations. In addition, the MRI ofplaintiffs spine shows no disc herniations or cord abnormalities causally related to this accident, but those pre-existing or degenerative in nature. The medical evidence provided by the plaintiff in this action is clearly insufficient to raise a triable issue of fact. There is no objective finding of permanent consequential injuries and or limitations resulting from this collsion. The medical evidence relied upon by the plaintiff to defeat this motion is unconvincing. Plaintiffs orthopedist does not specifically identify plaintiff s current permanent significant disabilities caused by this

7 DeCarlo v. Three 1. Leasin COW.. et al. accident. He notes pain and subjectively tested limitation, but no current specific objective medical tests relied upon in concluding that either plaintiff continues to suffer a permanent significant disability. Based on the evidence presented, the motions of the defendants seeking summar judgment are Granted. CPLR ~ The plaintiff has not set fort the necessar proof to demonstrate that he suffered the threshold serious physical injures necessar to maintain this action. Insurance Law ~~ 5102, It is, SO ORDERED. Dated: "UC)0. O' CONNLL, J. ENTERED OCT t." NASSAU COUNTY COUNTY CLERK' S OFFICE