SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. JOSEPH COVELLO Justice MOHINDER VERMA and MITAN VERMA, an infant over the age of fourteen years, by his father and natural guardian, MOHINDER VERMA Plaintiffs, -against- ROBERT H. KRIEB, JR. and GREGORY SULLIVAN, Defendants. TRIALIIAS, PART 29 NASSAU COUNTY Index #: 10327/00 Motion Date: 02/01/02 Motion Seq. No.: 004 The following paper read on this motion:. Notice of Motion... 1 Affirmation in Opposition... 2 Reply Affirmation... 3 Motion by defendant Robert H. Krieb, Jr. (Krieb) for an order pursuant to CPLR 3212 granting him summary judgment dismissing the complaint as against him on the grounds that plaintiffs did not sustain a serious injury within the meaning of Insurance Law $5102(d) is granted. This is an action to recover damages for personal injuries allegedly sustained by plaintiffs in a motor vehicle accident on August 3 1, 1997. At the time of the accident, plaintiff, Mitan Verma (sued herein as Mitan) was a passenger in the motor vehicle operated by his father Mohinder Vern$. Both plaintiffs were transported by ambulance : I to Winthrop University Hospital where they were treated in the emergency room and i released. One month after the accident, both plaintiffs sought treatment at A & A Chiropractic with Andrea C. Lo Russo-Pesiri, P.C. In the bill of particulars, plaintiff Mohinder alleges that he sustained the following injuries: Post traumatic cervical strain/sprain
/ Vema v Ktieb 2 Cervicobrachial syndrome Lumbar strain/sprai n Muscle spasm in the cervical region Cervical spine strain, sprain and derangement with radiculopathy Lumbar spine strain and sprain Lumbar spine derangement with radiculopathy Restriction of movement of the cervical and lumbar spines Restriction of range of motion of the cervical and lumbar spines Plaintiff Mitan alleges that he sustained the following injuries: Cervical sprain Lumbar sprain Cervical spine strain, sprain and deragement with radiculopathy Lumbar spine strain and sprain Lumbar spine derangement with radiculopathy Restriction of movement of the cervical and lumbar spines Restriction of range of motion of the cervical and lumbar spines Defendant Krieb has made a prima facie showing that plaintiff Mohinder did not sustain a serious injury within the meaning of Insuranc3 Law $5102(d) by submitting affirmed reports of Stephen Zolan, M.D., an orthopedist, and William H. Bloom, M.D., a. neurosurgeon. (Gaddy v Eyler, 79 NY2d 955; Taylor v Jerusalem Air, Inc., 280 AD2d 466.) In his affirmation, Dr. Zolan stated that Mohinder s cervical and lumbar sprains were resolved and that Mohinder had 1. ;no disability. In a similar vein, Dr. Bloom determined that Mohinder s cervical and lumbar strains were resolved and that there was no objective evidence of injury to the nervous system either clinically or on MRI, Defendant has also make a prima facie showing that plaintiff Mitan has not sustained a serious injury within the ambit of Insurance Law 95102(d) by submitting scan.
Vema v Krieb 3 affirmed reports of Stephen Zolan, M.D. and Jeffrey Davis, M.D., a neurologist. (See Gaddy v Eyler, supra.) Dr. Zolan opined that Mitan s cervical and lumbar sprains were resolved and that [dlespite subjective complaint, [Mitan] presents on clinical examination no objective evidence of orthopedic disability * * *. Similarly, Dr. Davis concluded that Mitan s injury was resolved and that he has no neurological disability. Since the aforementioned reports indicate that the plaintiff s injuries were resolved, (see Holmes v Hanson, 286 AD2d 750), the burden shifts to plaintiffs to come forward with proof in admissible form establishing a triable issue of fact that a serious injury was sustained within the meaning of Insurance Law $5102(d). (Gaddy v Eyler, supra; Lopez v Senatore, 65 NY2d 1017.) The evidence submitted by the plaintiffs in opposition is insufficient to defeat Krieb s motion for summary judgment. To rebut defendant Krieb s proof, each plaintiff has submitted, inter alia, their own affidavits, and affidavits from their treating chiropractor, Andrea C. Lo Russo-Pesiri, D.C. Dr. Lo Russo-Pesiri apparently treated both plaintiffs from October, 1997 to March, 1998. The recently authored affidavits dated, January 14,2002 of Dr. Lo Russo-Pesiri prepared in obvious response to the motion, fail to offer an adequate explanation for the 8; thirty-three month gap between the time of both plaintiffs treatment terminated in March, 1998 and their most recent examinations conducted on December 21,2001.. (Massey v Jung, 280 AD2d 586; Pierre v Nanton, 279 AD2d 621; Goldin v Lee, 275 AD2d 341.) While Dr. Lo Russo-Pesiri quantifies the restrictions in the range of motion of each plaintiff s lumbar and cervical spines, and causally relates said restrictions to the accident
Vema v Krieb 4 herein, there is no indication in Dr. Lo Russo-Pesiri s affidavit that any objective medical tests such as x-rays, CAT scans or MRI s were performed on the plaintiffs. (See Grossman v Wright, 268 AD2d 79; see also Smith v Askew, 264 AD2d 834.) Further, Dr. Lo Russo-Pesiri s finding that Mitan exhibited a 10 percent limitation of his cervical and lumbar spine is insufficient as a minor limitation of movement is not significant within the meaning of Insurance Law $5102(d). (See Licari v Elliott, 57 NY2d 230; Duncan v New York City Transit Authority, 273 AD2d 437.) Overall, the record substantiates the conclusion that the injuries sustained by plaintiffs constitute no more than soft tissue injuries to their cervical and lumbar spines, founded upon plaintiffs subjective complaints of pain. (See Hayden v Plotkin, 278 AD2d 455; Betheil-Spitz v Linares, 276 AD2d 73 1.) It is also clear that Dr. Lo Russo- Pesiri stated conclusions in her affidavits, which-were simply tailored to meet statutory requirements. (Harney v Tombstone Pizza Corp., 279 AD2d 609; Lopez v Senator%, supra.) Lastly, contrary to both plaintiffs contention, they have failed to raise an issue of fact with respect to the 90/180 day rule. In order to qualify under the 90/180 day rule, a plaintiff must prove that he or she was curtailed from substantially performing all of his 9 or her customary daily activities to a great extent for 90 out of the 180 days following the, accident. (Gaddy v Eyler, supra; sek also Rosenbaum v City of New York, 282 AD2d 514.) Mohinder s self-serving averment that he missed work for approximately two weeks and Mitan s statement that he missed school for two days is without probative value particularly in the absence of any competent medical evidence on this issue. (Hand
Vema v Krieb 5 v Bonura, 283 AD2d 608; Davis v Brightside Fire Protection, Inc., 275 AD2d, 298; Jackson v New York City Transit Authority, 273 AD2d 200.) In view of the foregoing, plaintiffs have failed to raise anissue of fact that they sustained a serious injury within the meaning of Insurance Law $5102(d),. Accordingly, defendant Krieb s motion for summary judgment dismissing the complaint is granted. This constitutes the decision and Order of the Court. / Dated: March 4, 2002.