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Plaintiff’s reports are insufficient to show whether plaintiff sustained serious injury


This action stems from personal injuries allegedly sustained by plaintiff as a result of a car accidentwith defendant which occurred on May 30, 2008, at approximately 7:35 a.m., at or near the intersection of Old Country Road and Sweet Hollow Road, Huntington, County of Suffolk, State of New York. The accident involved two vehicles, a 2005 Mitsubishi truck operated by plaintiff and owned by his employer,and a 2006 Chevrolet owned and operated by defendant.

Plaintiff contends that his vehicle was stopped for a red traffic signal at the aforementioned intersection and, when said traffic signal turned green for vehicles traveling eastbound through the intersection, plaintiff proceeded through said intersection. As plaintiff was driving through the intersection, defendant went through a red traffic light at the intersection and his vehicle collided with plaintiffs vehicle. As a result of the collision, plaintiff claims that he sustained serious injury.

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him summary judgment on the ground that plaintiff did not suffer a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes the motion.

The Court finds that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

Plaintiff’s reports are insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d). Failure to indicate which objective test was performed to measure the loss of range of motion is contrary to the requirements of Toure v. Avis Rent-a-Car Systems, supra. It renders the expert’s opinion as to any purported loss worthless and the Court can not consider such. See Toure v. Avis Rent-a-Car Systems, supra; Powell v. Alade, 31 A.D.3d 523, 818 N.Y.S.2d 600 (2d Dept. 2006). In Goluld v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567 (2d Dept. 2008), the Court held that a doctor’s affirmation, in a motion for summary judgment, was insufficient to show whether plaintiff sustained serious injury under permanent consequential limitation of use or significant limitation of use categories of no-fault automobile insurance provision, when, although the doctor set forth range of motion tests results based on a recent examination that revealed limitations in plaintiffs lumbar spine, plaintiff did not proffer competent medical evidence that showed similar range of motion limitations in the lumbar spine that were contemporaneous with the subject accident.

Furthermore, the physician’s conclusions that, “based upon the foregoing examinations, testing and treatment my diagnosis is that plaintiff suffers from: bulging discs at L2 through SI with thecal sac effacement and encroachment upon the neuroforamina; Traumatic left C5-6 cervical radiculopathy; Traumatic left L5-S1 radiculopathy and Traumatic myofascial pain syndrome as a result of the motor vehicle accident on May 30, 2008” are speculative in light of the fact that he failed to address or even acknowledge the fact that plaintiff had previously injured his lumbar spine in a prior car accident.

It is also noted that the unsworn report of another physician presented by plaintiff does not constitute competent admissible evidence in opposition to this motion for summary judgment. In the absence of any opinion as to the causality of her findings, her report is not competent medical evidence sufficient to present an issue of fact. See Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d The reports of plaintiffs treating and examining physicians also failed to address the findings of defendant’s radiologist with respect to degeneration, and thus, failed to raise a triable issue of fact.

Additionally, plaintiffs subjective complaints of pain, without more, are insufficient to satisfy the burden of establishing a serious injury. See Marshall v. Albano, 182 A.D.2d 614, 582 N. Y.S.2d 220 (2d Dept. 1992). Plaintiff has therefore failed to establish by competent medical proof that he sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.” See Insurance Law § 5102(d).

Finally, plaintiffs deposition testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff went back to work shortly after the accident.

Our New York Injury Lawyers from Stephen Bilkis and Associates can afford you due process under the law. It has offices within New York Metropolitan area, including Corona, New York.

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