ROBERT M. HELMINSKI v. KENNETH BURAK, GARY A. BURAK et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1691-04T21691-04T2

ROBERT M. HELMINSKI,

Plaintiff-Appellant,

v.

KENNETH BURAK, GARY A.

BURAK and JOHN DOES 1-5

(five fictitiously named

owners/operators of

motor vehicles),

Defendants-Respondents.

______________________________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Ocean County,

Docket No. L-1887-03.

Lynch, Teitelbaum & Geldhauser, attorneys

for appellant (Thomas H. Martin, on the

brief).

Sherman & Viscomi, attorneys for respondents

(Anthony J. Brown, on the brief).

PER CURIAM

Plaintiff appeals from an order of November 5, 2004, granting defendants' motion for summary judgment and dismissing the complaint relating to an automobile accident which occurred on October 14, 2002.

Plaintiff defended the motion by asserting that he presented "objective, credible, medical evidence that he has sustained serious permanent injuries that will not heal" and that his injuries were "causally related" to the accident. He also asserted that the injuries substantially affected his life.

The motion judge concluded that "even if the Court accepts the evidence presented as being objective credible medical evidence which would be the first prong of the injury, the issue here is . . . whether or not the impact upon the plaintiff is substantial and affects a significant part of his activities prior to the accident." She concluded that even if the activities plaintiff said he could not longer perform "formed a substantial part of his activities before the accident . . . he's still able to perform the activities, albeit, with some degree of pain and restriction." We do not read the opinion as passing on anything but the "second" or "substantial life impact" prong of the verbal threshold, which was struck down by the Supreme Court's opinions in DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005).

With respect to the so-called first prong, a report of an MRI taken on February 22, 2003 showed "[n]o evidence of herniated disc or spinal stenosis" and a "[n]ormal thoracic cord." Moreover, Dr. Laurie Glasser's report of March 2003 notes that the "MRI of the thoracic spine is completely within normal limits. MRI of the cervical spine does reveal a bulging disc at C3-4 but is not significant." However, the MRI of February 19, 2003 shows "C3-C4 bulging annulus with slight indentation of the ventral surface of the thecal sac" and "straightening of the cervical spine," and Dr. Glasser's September 2003 certificate of permanency, refers to the February 19, 2003 MRI as showing "bulging annulus with slight indentation of the ventral surface of the thecal sac at C3-C4 [and] straightening of the cervical spine related with muscle spasm." While Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002), was overruled as to the existence of the second prong, it remains viable to the effect that the doctor's certification is not dispositive on a motion for summary judgment. 354 N.J. Super. at 584-85. We remand for reconsideration of defendants' motion to dismiss in light of DiProspero and Serrano.

 
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

(continued)

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A-1691-04T2

September 22, 2005