Plaintiff, Defendant. Defendant s motion for summary judgment pursuant to CPLR dismissing the

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1 SUPREME COURT - STATE OF NEW YORK Present: HON. DANIEL PALMIERI Acting Justice Supreme Court ASHLEY LEMIRE, + _*_ TRIAL PART: 35. scq/sb Plaintiff, NASSAU COUNTY -against- INDEX NO:! BEULAH SCHER, Defendant MOTION DATE: MOTION SEQ. NO: 001 The following papers having been read on this motion: Notice of Motion, dated Affirmation in Opposition, dated Affirmation in Reply and in Further Support of Motion, dated Sur-Reply Affirmation, undated... 4 Defendant s motion for summary judgment pursuant to CPLR dismissing the complaint based on the failure of the plaintiff to have sustained a serious injury under Insurance Law is denied. This action arose as a result of a motor vehicle accident which occurred on December 27, 2000, from which the plaintiff is alleged to have sustained serious injuries. Defendant claims that plaintiff has failed to establish serious injury as defined by the Insurance Law 5102(d) has no cause of action under the New York Insurance Law Section 5104(a) and that the action must be dismissed. On a motion for summary judgment the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law. Junco v. Ranzi, 288 AD2d 440 (2nd Dept. 2001); Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986), Rebecchi v. Whitmore,

2 172 AD2d 600, (2nd Dept. 1991). - - a _.- The party opposing the motion, on the other hand, must. produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (Frank Corp. v. Federal lns. Co., supra, at 967, GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965 (1985), Rebecchi v. Whitmore, supra at 601. Mere conclusions or I. unsubstantiated allegations are insufficient to raise a triable issue (see;frank Corp. I/. Federal Ins. Co., supra). Further to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court deciding this type 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. CountyofAlbany, 50 NY2d 247 (1980); Daliendo v. Johnson, 147 AD2d 312,317 (2nd Dept. 1989). In addressing the serious injury issue as defined by the New York State Insurance Law 5102(d), the Court first looks at the plaintiffs pleadings. Plaintiff alleges in her Bill of Particulars to have sustained lumbar disc bulges at L2-3, L3-4, L5-Sl and L5-Sl as well as L5-Sl radiculopathy, which plaintiff contends satisfies the serious injury requirement of the insurance Law. Since a disc herniation or bulge and limited range of motion may constitute evidence of serious injury, a defendant must demonstrate that it is not causally related to the accident, Caulfield v. Metten, 275 AD2d 758 (2nd Dept. 2000). Conversely the existence of a herniated disc or bulge does not in and of itself constitute a serious injury. To raise a triable issue of fact as to whether a herniated disc or bulge constitutes a serious injury, a plaintiff is required to provide objective evidence of the qualitative nature of the plaintiffs limitations based upon the normal function, purpose and use of the injured body parts. Toure v. Avis RentA Car Systems, Inc., 98 NY2d 345 (2002). 2

3 The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Junco v. Ranzh supra; Winegrad v. New York Univ. Med. Center, 64 NY2d 851,853 (1985). Serious injury as defined by 55102(d) of the New York State Insurance Law means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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 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. Defendant argues that plaintiff did not sustain a serious injury as defined by any section of the statute. Defendant s application is supported by affirmations of Dr. Hudak, an orthopedist, Dr. Tikoo, a neurologist and Dr. Tantleef, a radiologist. On behalf of the defendant, Dr. Hudak examined plaintiff and the medical records available for his review and concluded that plaintiffs complaints are subjective and that there were no objective findings of disability. Dr. Tikoo examined plaintiff and available records and concluded that there was no significant evidence of neuropathy, radiculopathy or disc herniation and that disc bulges are of no clinical significance. Dr. Tantleef reviewed an MRI of plaintiff and found no evidence of spinalstenosis, disc herniation or bulge. In a motion for summary judgment seeking to dismiss, the defendant is required to establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law (d). Gaddy v. Eyler, 79 NY2d 955 (1992). Upon such 3

4 a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence 0.,-. in admissible form to demonstrate the existence of a question of fact on the issue. Gaddy, supra. The Court must then decide whether plaintiff established a prima facie case of sustaining a serious injury. Licari v. Ell/btf 57 NY2d 230 (1983). In opposition plaintiff has submitted affirmations of Dr. Gregorace, a,physiatrist who treated plaintiff, Dr. Diamond, presumably a radiologist, who examined plaintiff s lumbar MRI and Dr. Morganstern who practices at the same facility as Dr. Gregorace, who performed a recent examination of plaintiff. The affirmations submitted by the defendant in support of the motion for summary judgment were affirmed under the penalty of perjury (see, CPLR 2106) and made out a prima facie case that the plaintiff did not sustain serious injury within the meaning of Insurance Law 5102(d), cl: Junco v. Ranz/; supra; Monette v. Keller, 281AD2d 523 (2nd Dept ), Dugan v. Sprung, 280 AD2d 736 (3rd Dept. 2001), Napoli v. Cunningham, 273 AD2d (r Dept. 2000), Delinda v. Coronamos Cab Carp, 244 AD2d 397 (2nd Dept. 1997). The submission in support of the motion establishes a prima facie case that the injured plaintiff has not sustained a serious injury within the meaning of Insurance Law 5102(d), ct: Gamberg v. Romeo, 289 AD2d 525 (2nd Dept. 2001); Napoli v. Cunningham, supra, thus shifting the burden to the plaintiff to rebut the movant s case by submitting proof in evidentiary form showing the existence of triable issues of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980); Friends ofanimals v. Associated FurManufacturers, Inc., 46 NY2d 1065 (1979). Delinda v. Coronamos Cab Carp, 244 AD2d 397 (2nd Dept. 1997). Plaintiff has submitted evidence sufficient to raise triable issues of fact. Scudera v. Mahbube/; NYLJ, December 3,2002, p.25 (2nd Dept.). Dr. Gregorace who treated plaintiff and who conducted EMG/NCV studies found in pertinent part that the sudden violent and 4

5 f o r ce f u l i m pac t caused by t he acctr e imden endous t exe p rt ed rtessu o- -t he r es tr uc t u r a l i n t eg rit y o f t he nuc l eus pu annu l lus posus fi b r os, i s and f ace t j o i n t s o f t he l u m ba r r esu lti ng i n m u lti p l( e L2 l u/ 3 L3 m, ba / 4and r L5S dl) i sc bu l ges Add. iti ona Ell MG y, lncv t es ti ng r eveal5 lled u m ba r r ad icu lopa t hy, w h ich c lealerlmy de ir e i s nfiiti nes a l cm li ns ica. l sy m p t o m o l ogy o f l o w back pa i n r ad i a ti ng i n t o Las t he tl y lre, ange ft l o w e fr ex tr e m o ti on t es ti ng r evea l ed cons i s t en t pa i n and s i gn ifi can t li m it a ti ons m o ti on. The fi nd i ng o f d i sc bu l ges a r e con fir m ed by t he a ffir m a ti on o f s t ud i ed t he l u m ba r MR I t aken sho rtl y a ft e r t he acc i den t. The fi nd i w h i ch a r e dependen t on a r epo rt o f a D r. L i guo ri have no t been cons f a il u r e t o sub m it an a ffir m a ti on fr o m D r. L iguo ri. D r. M o r gans t e r n, w ho exa m i ned p l a i n tiff r ecen tl y a l so f ound li m pos iti ve o rt hoped ic t es t s, r ad icu lopa t hy and d isc bu lges. These fi nd i ob jec ti ve t es t s, t he r esu lt s o f w h ich have been sub m itt ed. P l a i n tiff has a l so r a i sed an i ssue o f f ac t as t o he r c l a i m o f i n subs t an ti a ll y a ll o f he r da. ilsewell y ac ti v. vkaplan747 iti es NYS2d 859 ( 3 r dd ep 2001 t. ), Hines v. Capital District Transportation Authority, 280 AD2d 768 ( 3 r d D2001 ep t. e), t Jackson v. New York City TransitAuthonty, 273 AD2d 200 ( 2nd D2000 ep t. Turchuk ), v. Town of Wallkr# 255 AD 2d576 ( 2nd D ep t H e r e ). t he r e i s su ffi c i en t m ed i ca ev idence t o suppo rt p la in tiff s, c la im o f a m ed ica ll y de t e r m ined in ju r y o na t u r e w h ich p r even t ed he r fr o m pe rf o r m ing subs t an ti a ll y a ll o f t he m cons tit u t e he r usua l and cus t o m a r y da il y ac ti v iti es f o r 90 o f t he fir s t 18 acc iden t w it h in t he m ean ing o f I nsu r ance Toure La v. w Avis 5102 RentA ( d CarSystems, ). Inc., supra. I n add iti on t o sho w ing a nexus be t w een t he in ju r y and t he du d isab ilit y, t he r e has been sub m itt ed adequa t e p r oo f o f t he f u ll ex t en t 5

6 ac ti v iti es and a cu rt a il m en t t o a g r ea t ex t en Horowitz t o f t he I/. ab ilit y Clear-water, 176 AD 2d1084 ( 3 r d D ep Tha t t p ). l a i n tiff con ti nued w it h he r c s t ud i es du ri ng t h i s pe ri od i s a f ac t o r f o r t he Grossman j u r y t o I/. cons i de Wright, 268 AD 2d79 ( 2nd D ep t ). P l a i n tiff has p r ov i ded p r oo f o f se ri mous ed i c i@p n rj uoor y f twheit h r ob eo f j ec w it h i n t he m ean i ng o f t he no -f au lt s t a t u t e su ffi c i en t t o r a i se an m e t he r bu r den. The m o ti on i s den i ed. Th i s cons tit u t es t he D ec i s i on and O r de r o f t h i s C ou rt. ENTE R DATED: DECEMBER 20,2002 %N. DANIEL PALMIERI Acting J.SC. TO: ROBERT P. TUSA LAW OFFICES Attorney for Plaintiff 1225 Franklin Ave, Suite 501 Garden City, NY ATT: JOSEPH T. SCHNURR, ESQ. BUNTING & DEMIRIS, P.C. Attorneys for Plaintiff 293 Castle Ave. Westbury, NY ATT: SEAN M. BUNTING, ESQ. 6