In this case, plaintiffs filed an action to recover damages against the defendants for the injuries allegedly sustained by the plaintiff in a car accident on February 16, 2009, on Motor Parkway at or near its intersection with Express Drive North, County of Suffolk, State of New York, when Plaintiff was operating his vehicle and it was struck by the vehicle owned by defendants.
Plaintiff alleged that he sustained injuries consisting of, inter alia, lumbar disc herniation at L4-5 impinging on the anterior aspect of the spinal canal and the nerve roots bilaterally; lumbar sprain and strain with muscle spasms, severe pain, tenderness, swelling, and permanent and significant restriction and limitation of motion; posterior disc herniation at C5-6 and C6-7 abutting the anterior aspect of the spinal cord; possible cervical radiculopathy; cervical sprain, strain, with muscle spasms, severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion; right knee sprain, strain, contusion; peripatellar bursitis; severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion.
The defendants sought summary judgment dismissing the complaint on the basis that the injuries claimed failed to meet the threshold imposed by Insurance Law § 5102 (d).
Jurisprudence dictates that It is for the court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action.”
Defendants submitted, inter alia, the sworn report their orthopedist; the sworn report of their neurologist; and the sworn report of Plaintiff’s orthopedist.
Plaintiff’s orthopedist reported, inter alia, that the range of motion examination is a subjective test under the voluntary control of the individual being tested, thus raising credibility issues which are to be determined by the trier of fact. The court’s function is not to resolve issues of fact or to determine matters of credibility but rather to determine whether issues of fact exist precluding summary judgment.
Plaintiff’s orthopedist also submitted admissible evidence to demonstrate findings of a herniated lumbar disc and a deficit in the lumbar flexion range of motion. While such injuries may constitute evidence of serious injury based upon objective findings, the defendants’ expert does not comment on the cause of the cervical disc herniations and does not rule out that the cervical herniated discs were not caused by the subject accident.
Defendant’s orthopedist reported, inter alia, that the plaintiff did not show clinical findings consistent with radiculopathy on the date of the examination, thus raising factual issue with the EMG findings and determinations made relative to that test. He also does not believe that further intervention is needed and that the plaintiff has sustained full and maximal recovery.
Defendant’s orthopedist does not address the issue of proximate cause of the injuries and does not rule out that the herniated discs were not caused by the subject accident, nor does he dispute that the plaintiff sustained such injuries. Thus, Defendant’s orthopedist has not established prima facie that the plaintiff did not sustain a serious injury based upon the diagnosis of both cervical and lumbar herniated discs. The two opposing orthopedist have set forth differing normal range of motion values for lumbar extension and lateral rotation, and for cervical flexion and rotation. Defendant’s orthopedist did not state a measurement for cervical rotation. Thus, this Court is left to speculate as to what the normal ranges of motion are, and what the range of motion for cervical rotation finding was upon Defendant’s orthopedist examination. Defendant’s orthopedist has also failed to set forth the objective method employed to obtain the range of motion measurements he reported for the plaintiff’s cervical and lumbar spine, such as the goniometer, inclinometer or arthroidal protractor, leaving it to the court to speculate as to how he determined such ranges of motions when examining the plaintiff.
Defendant’s neurologist reported, inter alia, that Nassau Plaintiff presents with ongoing subjective post-traumatic symptoms of intermittent pain in his posterior neck and low back regions.
Additionally, the defendants’ examining physicians did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering defendants physician’s affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiff was unable to substantially perform all of the material acts which constituted his usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident, and defendants’ experts do not comment on the same.
Based upon the foregoing, the defendants have not established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance law § 5102 (d) or 5104. The court had no other recourse but to deny the motion.