Maslinka v Papagni

[*1] Maslinka v Papagni 2006 NY Slip Op 52393(U) [14 Misc 3d 1203(A)] Decided on December 14, 2006 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 14, 2006
Supreme Court, Richmond County

Agron Maslinka and Vasfije Maslinka, Plaintiff(s),

against

Frank Papagni, Anthony J. Andux and Welsbach Electric Corp., Defendant(s).



10607/04

Robert J. Gigante, J.

Plaintiffs commenced this action to recover damages for injuries they allegedly sustained in two separate motor vehicle accidents. The first accident occurred on January 21, 2002, when a vehicle owned and operated by plaintiff AGRON MASLINKA was rear-ended while traveling in the left lane of the westbound Staten Island Expressway. It is alleged, inter alia, that the following vehicle, which fled the scene, pushed the MASLINKA vehicle into the center lane of the expressway, where it collided with a vehicle owned and operated by defendant FRANK PAPAGNI. Plaintiff VASFIJE MASLINKA was a passenger in the MASLINKA vehicle.

The second motor vehicle accident allegedly occurred on February 7, 2002, when a vehicle operated by MR. MASLINKA collided with a vehicle owned by defendant WELSBACH ELECTRIC CORP. and operated by defendant ANTHONY J. ANDUX. MRS. MASLINKA was again a passenger in the vehicle being driven by her husband.

Plaintiffs' complaint contains identical claims of negligence against each of the defendants in each accident, i.e., that he or they (1) failed to keep their vehicles under proper control; (2) failed to observe the conditions of the roadway; (3) operated their vehicles at an excessive rate of speed for the conditions then extant; (4) failed to make adequate, proper and timely use of their brakes; and (5) failed to keep their motor vehicles equipped and maintained in good and sufficient working order, especially as regards the braking, steering and signaling systems.

Insofar as applicable, plaintiffs' bills of particulars allege that each of them sustained identical injuries in each accident. With respect to AGRON MASLINKA, these injuries are alleged to include: desiccation and posterior disc bulge at L4-L5; lumbar disc bulges at L4-L5 and L5-S1; cervical and lumbar disc herniation/displacement; cervical acceleration-deceleration injury; cervical strain injury; cervical radiculopathy at C6-C7; bilateral brachial neuritis; recurrent encephalgia; lumbar radiculopathy at L4-L5 and L5-S1; bilateral sciatic neuritis; hypolordosis of the cervical spine; straightening of the normal cervical lordosis; and post-traumatic headaches. MR. MASLINKA further alleges that he was caused to suffer severe pain, permanent disfiguring, depression, stress, loss of appetite, difficulty sleeping, restriction of motion and degeneration of the underlying soft tissues, blood vessels, bones, nerves, tendons and ligaments. He also claims to have difficulty with prolonged sitting, standing, walking, bending, stair-climbing, lifting and carrying heavy objects, as well as performing other strenuous activities. The foregoing injuries are alleged to be permanent in nature, and to have impaired and disrupted his daily activities and enjoyment of life.

With regard to VASFIJE MASLINKA, it is alleged that she sustained, inter alia, lumbar bulging discs at L4-L5 and L5-S1; desiccation and posterior disc bulges at L4-L5 and L5-S1; posterior disc herniation at C5-C6 level; cervical disc herniation at C5-C6; a herniated disc at C5-C6 with indentation along the anterior surface of the dural sac; cervical acceleration-deceleration injury; cervical radiculopathy at C6-C7 and C7-C8; bilateral brachial neuritis; pain in both wrists; thoracic strain injury; segmental dysfunction of the cervical and lumbar vertebrae; hypolordosis of the cervical and lumbar spine; decreased disc space at C4-C5 and C6-C7; and encroachment at L5-S1. It is further alleged that these injuries were accompanied by severe pain, permanent disfiguring, scarring, tenderness, swelling, discomfort, depression, stress, restriction of motion and degeneration of the underlying soft tissues, blood vessels, bones, [*2]nerves, tendons and ligaments. MRS. MASLINKA also claims that she suffers from severe head pain, persistent headaches, dizziness, nervousness, tension and vertigo, and that these and her other injuries have caused her difficulty with prolonged sitting, standing, walking, bending, stair-climbing, lifting and carrying heavy objects. Finally, she claims that these injuries are permanent in nature, and will continue to impair, disrupt or encumber the performance of her usual daily activities.

In the first enumerated motion (No. 1292), defendant FRANK PAPAGNI (hereinafter PAPAGNI) moves for summary judgment dismissing the complaint on two grounds, (1) that there is no triable issue of fact as to his liability for causing the January accident, and (2) that neither plaintiff has suffered a "serious injury" as defined in section 5102 of the Insurance Law.

With respect to that portion of the motion pertaining to liability, PAPAGNI purports to rely on a police accident report which indicates that the MASLINKA vehicle was traveling at an excessive rate of speed, making the collision unavoidable. In further support, PAPAGNI submits excerpts from his EBT, in which he claims that he was driving in the center lane, approximately 1000 feet from the toll booths, when he observed a vehicle in the left lane hit the MASLINKA vehicle from the rear. The MASLINKA vehicle then "crossed-over" into the center lane, where it ended-up perpendicular to the direction of traffic and was struck. PAPAGNI further testified that he attempted to avoid the accident by turning to his right and applying his brakes, but that the presence of traffic on either side left him with nowhere to go. PAPAGNI also relies on so much of MR. MASLINKA's EBT testimony as relates that he was driving in the left lane when he was struck from behind by a Jeep; lost control; and was thrown into the center lane before being struck by PAPAGNI. Thus, it is movant's position that the "emergency doctrine" operates to absolve him of liability.

In opposition to the liability portion of PAPAGNI's motion, plaintiffs contend that his reliance on the police accident report is unwarranted, as the report is not certified and the statements contained therein are hearsay. Plaintiffs also contend that the emergency doctrine is inapplicable to these facts, since PAPAGNI admitted at his EBT that he observed plaintiffs' vehicle in the left lane prior to the accident and admits to striking their vehicle. Plaintiffs further contend that questions of fact exist as to whether or not PAPAGNI violated so much of the Vehicle and Traffic Law as prohibits a motorist from following another vehicle more closely than is reasonably prudent, having due regard for the speed of such vehicles and the traffic and roadway conditions. In any event, plaintiffs contend that the emergency doctrine does not automatically absolve a driver of liability for his own conduct where, as here, it is alleged that such conduct was (1) unreasonable or (2) a contributing cause of the accident. According to plaintiffs, a jury could reasonably determine from the evidence thus far adduced that PAPAGNI failed to keep a safe and proper distance from the vehicle in front of him, and that such failure contributed to the collision.

The motion for summary judgment on the issue of liability is denied.

Summary judgment is a drastic measure that deprives a party of his or her day in court, and may be granted only if no genuine issue of fact is presented (see Ugarriza v. Schmieder, 46 NY2d 471, 474). In this context, it has been said that summary judgment will rarely be granted in negligence actions, since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the clearest of circumstances. [*3]Moreover, it is well-established that the applicability of the emergency doctrine, like the reasonableness of a defendant's conduct, generally presents a question of fact for the jury to determine (see Bello v. Transit Auth. of NY City,12 AD3d 58, 60).

Here, it cannot be determined as a matter of law whether the moving defendant acted reasonably under all of the circumstances presented, and on this issue, so much of the police accident report as indicates that MASLINKA was traveling at an excessive rate of speed is inadmissible as hearsay (see Rue v. Stokes, 191 AD2d 245). Accordingly, PAPAGNI has failed to carry his burden of demonstrating his freedom from negligence as a matter of law.

With regard to so much of his motion as seeks dismissal of the complaint based on plaintiffs' inability to establish "serious injury", PAPAGNI has submitted the affirmed report of an orthopedist, Dr. Gregory Montalbano, and a neurologist, Dr. Michael Carciente.

Dr. Montalbano examined both AGRON and VASFIJE MASLINKA on November 21, 2005. According to Dr. Montalbano, his examination of AGRON MASLINKA revealed, inter alia, normal cervical lordosis; no evidence of paraspinal spasm; and normal thoracic kyphosis with no list or abnormal curvature. With respect to the lumbar spine, Dr. Montalbano again noted normal lordosis; no list or abnormal curvature; and no evidence of muscle spasm. While he observed decreased range of motion in MR. MASLINKA's cervical and lumbar spine, Dr. Montalbano opined that the cervical and lumbar sprain associated with the January accident overlies a pre-existing condition of degenerative disc disease. According to the doctor, these symptoms may have been exacerbated by either accident. Dr. Montalbano reports that MR. MASLINKA needs no further diagnostic testing or treatment, and that there is no objective evidence of disability or limitation relating to the January 2002 accident that would impair his current or future ability to work.

With regard to VASFIJE MASLINKA, Dr. Montalbano found no evidence of orthopedic disability. According to Dr. Montalbano, MRS. MASLINKA's cervical lordosis is normal; there is no paraspinal spasm; her thoracic kyphosis is normal with no list or abnormal curvature; and there was no evidence of muscle spasm. His report also indicates that her lumbar lordosis is normal with no list or abnormal curvature. No muscle spasm was detected. While again noting decreased range of motion in this plaintiff's cervical and lumbar regions, Dr. Montalbano concluded that MRS. MASLINKA's cervical and lumbar sprain also overlaid a pre-existing condition of degenerative disc disease which was not caused by the January 21, 2002 accident. Moreover, he opined that while the subject accident may have exacerbated these symptoms, so may the accident which occurred on February 7, 2002. Dr. Montalbano also questioned the positive results allegedly obtained in an electro-diagnostic test that was administered to MRS. MASLINKA, as it did not correlate with the supposed disc abnormality found in the cervical MRI taken on February 22, 2002. According to the doctor, there is no connection between the report of bulging discs and the January 21, 2002 accident. He further maintains that MRS. MASLINKA requires no further diagnostic testing or treatment, and that there is no objective evidence of any orthopedic disability or limitation relating to the January 21, 2002 accident. In his opinion, MRS. MASLINKA is capable of seeking gainful employment.

Dr. Carciente examined AGRON MASLINKA on November 17, 2005 and found no objective neurological findings or evidence of either cervical or lumbar radiculopathy. According to the neurologist, a motor examination revealed no atrophy or pronator drift; grip was [*4]strong bilaterally; deep tendon reflexes were normal and symmetric in both the upper and lower extremities; and plantar response was flexor bilaterally. He noted no spasticity, ankle clonus or Hoffman sign. Motor strength was found to be normal in all of the major muscle groups of the upper and lower extremities. Dr. Carciente further reported that MR. MASLINKA walks normally and without apparent difficulty, and that he is able to stand and walk on his heels and toes. The doctor found no tenderness of the cervical spine and no evidence of paraspinal spasm. While acknowledging that MR. MASLINKA complained of tenderness in the left side of his lower back, Dr. Carciente found no evidence of spasm, and reported that the straight-leg maneuver was negative. Based on this examination, Dr. Carciente concluded that there is no objective evidence indicating that the claimed symptomology is causally related to the January 21, 2002 accident; however, it may have been caused by the accident occurring on February 7, 2002.

Finally, PAPAGNI adopts the following arguments tendered by codefendants, WELSBACH and ANDUX.

In moving for summary judgment on the threshold issue of "serious injury", codefendants WELSBACH and ANDUX (hereinafter, collectively, WELSBACH) contend that plaintiffs suffered only minor injuries as a result of the February 7, 2002 accident, and therefore cannot meet the "threshold" requirement of the No-Fault Law. In support, defendants submit, inter alia, the affirmed report of a neurologist, Dr. Ravi Tikoo, who examined AGRON MASLINKA on May 15, 2002, i.e., three months after the February 7, 2002 accident, and concluded that MR. MASLINKA suffered no neurologic disability as a result of the accident in question. According to Dr. Tikoo, the motor examination was normal; no atrophy, fasciculation or adventitious movements were detected; the sensory examination was intact as to light touch and pain modalities in all extremities; the coordination examination revealed no dysmetria, ataxia, or nystagmus; and both gait and heel to toe walking was said to be normal. Dr. Tikoo did find mild tenderness of the cervical and lumbar spine, but no spasm was detected. According to Dr. Tikoo, the spine was brought to full range of motion, and straight-leg raising was possible up to 90 degrees bilaterally in the sitting position. As a result, Dr. Tikoo concluded that MR. MASLINKA had sustained post-traumatic headaches, cervical and lumbar strain and soft tissue injuries of the legs, but that he is not in need of any household help, medical devices or ambulatory services. He further opined that there is no anticipated permanence in MR. MASLINKA's condition. In the final analysis, Dr. Tikoo concluded that MR. MASLINKA is able to function in his pre-accident capacity, and to carry out all of his day-to-day activities without restriction.

WELSBACH has also submitted the affirmed report of an orthopedist, Dr. M. Pierre Rafiy, who examined MR. MASLINKA on May 16, 2002. The doctor reported normal lordosis of the cervical spine, and no paraspinal or trapezius muscle spasm. Cervical compression testing was negative. Dr. Rafiy also reported normal ranges of motion in flexion, extension, right and left rotation, and right and left lateral flexion. With respect to the lumbar spine, the doctor noted a normal lordotic curve; no spasms or tenderness over the paraspinal musculature on palpation; and a negative sitting Laseque. Straight-leg raising was found to be negative to 75 degrees in both the seated and supine positions. Range of motion testing of the lumbar spine was said to reveal normal forward flexion, extension, and right and left lateral flexion. No atrophy was [*5]noted in the muscles of the lower extremities; Patellar and Achilles deep tendon reflexes were found to be normal; no sensory deficit was detected; femoral nerve stress testing of the hip abduction and extension provoked no pain; Patrick's test was negative; and both knee flexion and active leg-raising were performed without difficulty. As a result, Dr. Rafiy concluded that MR. MASLINKA had sustained resolved cervical and lumbar sprain, and opined that there is no present disability or permanency stemming from the February7, 2002 accident. MR. MASLINKA was also found to be capable of working and performing all of his normal activities of daily living without any limitation. The doctor perceived no need for further orthopedic treatment, physical therapy, diagnostic testing, medical supplies, household help or special transportation.

WELSBACH has also submitted the affirmed report of a second orthopedist, Dr. Edward Crane, who examined MR. MASLINKA on February 15, 2006 and found full and painless range of motion of the cervical spine, with no tenderness or spasm in the posterior paravertebral cervical musculature. Bicep, tricep and brachioradialis reflexes that were all stated to be 2+ and symmetrical bilaterally. MR. MASLINKA was reported to walk normally, with no limp. Straight-leg raising was found to be negative to 90 degrees bilaterally. According to Dr. Crane, there was no objective evidence of any orthopedic residuals related to either accident, and no further orthopedic treatment was required. MR. MASLINKA was found capable of pursuing his prior employment as a porter, without restriction, and his prognosis was stated to be excellent.

With regard to MRS. MASLINKA, WELSBACH has submitted another affirmed report by Dr. Rafiy, who administered an orthopedic examination on May 16, 2002. The doctor reported that his examination of the cervical spine revealed normal lordosis, with no paraspinal or trapezuis muscle spasm. Cervical compression testing was stated to be negative, and cervical range of motion was found to be normal with respect to flexion, extension, right and left rotation, and right and left lateral flexion. As for the lumbar spine, Dr. Rafiy reported an abnormal lordotic curve, but no spasms or tenderness over the paraspinal musculature upon palpation. Sitting Laseque testing was found to be positive to 20 degrees, as was straight-leg raising in both the seated and supine positions. However, decreased range of motion of the lumbar spine was noted. According to Dr. Rafiy, MRS. MASLINKA had sustained a resolved sprain of the cervical and thoracic spine, as well as a resolving sprain of the lumbar spine. In his expert opinion, she suffers from no present disability; no permanency will result from the February 2002 accident; she is fully capable of working and performing all of her normal activities without limitation; and she requires only limited further treatment, i.e., a "couple" of follow-up visits to her orthopedist over the next two months. Other than the foregoing, he perceived no need for further treatment.

In his affirmed report of an orthopedic examination conducted on February 15, 2006, Dr. Crane reported some restriction in MRS. MASLINKA's cervical spine with regard to extension, right and left lateral rotation, but no discomfort, tenderness or spasm in the posterior paravertebral cervical musculature. With regard to her lumbar spine, Dr. Crane reported lumbosacral flexion to be pain-free to 90 degrees, and right and left lateral bending was found to be unimpeded and pain-free. While MRS. MASLINKA claimed mild subjective tenderness on palpation in the lower lumbar region, she had no associated spasm. Straight-leg raising was negative to 90 degrees. Dr. Crane found no objective evidence of any orthopedic residuals [*6]related to either accident, and opined that MRS. MASLINKA requires no further orthopedic treatment. She was found to be capable of working without restriction, and her prognosis was stated to be excellent.

Finally, WELSBACH has submitted the affirmed report of a second neurologist, Dr. Roger Bonamo, who examined MRS. MASLINKA on January 13, 2006. He reported that (1) her gait was normal; (2) she flexes fully at the waist reporting mild back pain; (3) a Romberg's sign was absent; (4) range of motion of the neck was full, with neck pain greatest on flexion; (5) her cranial nerves 2-12 were normal; (6) she exhibited no muscle atrophy; (7) her muscle strength and tone were normal; (8) her reflexes were active and equal; and (9) her plantar responses were flexor. Straight-leg raising was found to be negative, but lower back pain was reported with all passive movements of the left lower limb. A tenderness in the muscles of the left neck and back was also noted, but no spasm was detected. Tinel's and Phalen's signs were absent at both wrists. As a result of this testing, Dr. Bonamo concluded that MRS. MASLINKA suffered from muscle strain, which is consistent with her medical records. According to Dr. Bonamo, there was no objective evidence of radiculopathy in her neck or lower back. Moreover, the doctor opined that any radiographically detected disc bulges were neither the cause of her reported symptoms nor the effect of any specific trauma.

Based on these exhibits, defendants maintain that they have made a prima facie showing that neither plaintiff sustained a permanent significant limitation of use of a body function or system, nor a significant limitation of use of a body organ or member as a result of these accidents. Movants further contend that their proof establishes that plaintiffs have not sustained any permanent injuries, and that any soft tissue injuries resolved quickly, with no permanent or debilitating residuals. Regarding MRS. MASLINKA's claim to have sustained a herniated disc, it is movants' contention that there is no objective medical evidence establishing that this alleged injury has resulted in any significant physical limitation. Finally, movants contend that each plaintiff has failed to establish that his or her usual and customary daily activities were substantially impaired for 90 or more days during the first 180 days following either accident. In particular, movants note that MR. MASLINKA was out of work for only two or three days following each accident, while MRS. MASLINKA has failed to interpose any claim for lost wages.[FN1]

In opposition to these motions, plaintiffs have submitted the affidavits of their treating chiropractor, Dr. David Abrams, who recently examined both plaintiffs and reviewed the various X-rays, MRIs, and other reports regarding to their alleged injuries. The affidavits indicate that MRS. MASLINKA was treated by Dr. Abrams until March 29, 2004, and that MR. MASLINKA was treated until April 27, 2004. According to the doctor, the cessation of treatment in each instance was the product of the denial of continued no-fault benefits and an inability to pay for continued treatments "out-of-pocket".

As for MR. MASLINKA, the chiropractor's affidavit indicates that during both the initial examination on February 5, 2002 and the re-examination on May 10, 2006, his lumbar and cervical spines revealed restricted ranges of motion upon flexion, extension, and left and right [*7]lateral bending, all of which the doctor quantified and compared to normal. The affidavit further indicates that on February 5, 2002, straight-leg raising was positive on the left at 45 degrees and positive on the right at 50 degrees, and that the Milgram, Valsalva, Minor's Sit and Rise, bilateral Schepelmann, bilateral Bechterew, Adams, Lindners, Amoss and bilateral Kemp tests were all positive. These examinations also revealed spasms in the bilateral erector spinae and quadratus lumborum muscles. Finally, the February 2002 examination of the cervical spine was said to reveal positive findings upon cervical compression testing, and in response to left and right Jackson, Valsalva and Soto Hall tests. Palpable tenderness was elicited at C5, C6, C7, T1 and L1-5.

Based, inter alia, upon his examinations and treatment of MR. MASLINKA, Dr. Abrams opined that each of the injuries enumerated in his bill of particulars had been sustained, and that all were permanent in nature and have prevented MR. MASLINKA from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the first 180 days following each accident. The chiropractor further opined that these injuries were not the result of any pre-existing or degenerative disc disease, as the patient initially presented to him with no pre-accident history of the symptoms or related disabilities reported after the accident of January 21, 2002. Dr. Abrams also opined that these injuries showed no significant change after the February 7, 2002 accident. In sum, the chiropractor concluded that MR. MASLINKA had sustained a permanent partial disability that was causally related to the cervical and lumbar injuries that he suffered in both accidents, but that the lack of any substantial change in condition after each accident precluded the doctor from stating which accident caused which specific injury.

As for MRS. MASLINKA, the chiropractor's affidavit indicates that she was initially examined by him on February 6, 2002, and exhibited restricted lumbar and cervical ranges of motion upon flexion, extension, and left and right lateral bending, all of which were quantified by him and compared to normal. The chiropractor also reported positive findings upon straight-leg raising, bilateral Bechterew, Valsalva, Minor's Sit and Rise, left Schepelmann, Milgram, Adams, Lindners, Amoss and bilateral Kemp testing. Upon his re-examination of her cervical spine on May 10, 2006, Dr. Abrams again reported positive findings upon cervical compression, left and right Jackson, Valsalva and Soto Hall testing, and stated that he elicited palpable tenderness at C5-C7, T1-T4, Sacrum L1-L5 and both sacroiliac joints. Upon postural analysis, an elevated left shoulder and right head tilt was detected, as was a spasm of the right trapezius and bilateral rhomboid muscles.

Based upon these findings and the findings in the x-rays, MRIs and other reports, the chiropractor concluded that MRS. MASLINKA had sustained all of the injuries enumerated in her bill of particulars, and that such injuries are causally related to the subject motor vehicle accidents. He further concluded that her injuries are permanent in nature, and have prevented MRS. MASLINKA from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than 90 days during the 180 days immediately following each accident. He further opined that the observed injuries, symptoms and disabilities are not the result of any pre-existing or degenerative disease, as the patient claimed to be asymptomatic prior to the January 21, 2002 accident. He also reported no significant change in condition after the February 7, 2002 accident. Accordingly, the chiropractor believed that MRS. [*8]MASLINKA has sustained a permanent partial disability that was causally related to the lumbar and cervical injuries she suffered in the January and February accidents, but that he was unable to associate either accident with any specific injury. He concluded by stating that continued therapy and treatment are essential to MRS. MASLINKA, but that her prognosis for a full recovery is nevertheless poor.

In further opposition, each plaintiff has submitted a personal affidavit detailing the pain and restrictions in movement that are alleged to have prevented them from performing many of the activities that they performed on a daily basis prior to the January 21, 2002 accident. In particular, MR. MASLINKA states that he cannot stand for more than 20 minutes; cannot sit for more than 10 minutes; nor can he walk for more than a few blocks without experiencing pain. He avers that while he was able to participate in sports and run without restriction prior to the January 21, 2002 accident, he can no longer lift himself from a chair or bed without pain, and can no longer be active with his children. He also claims that he can no longer enjoy conjugal relations with his wife due to pain, and that he has suffered from headaches since the January 2002 accident. He further states that he was fired from his job as a porter because he could no longer perform required activities such as mopping and waxing floors, scrubbing and cleaning bathrooms, and dusting. Nor can he stretch while standing on a ladder.

In her affidavit, MRS. MASLINKA states that since the day of the accident, she has been unable to perform her usual daily activities without experiencing pain and restriction in her back. These activities are said to include dressing, cooking, washing dishes, making beds, vacuuming, sitting, standing, coughing and sneezing. She also claims that she can no longer enjoy conjugal relations with her husband, and that she can stand for only 30 minutes, sit for only 15 minutes, and walk for only 10 minutes without experiencing pain. Previously, she was able to walk continuously without restriction. Plaintiff further maintains that she had never experienced headaches prior to the January 2002 accident, but that she now suffers from headaches several times each week. In addition, she maintains that she is presently incapable of turning her head to the left or lifting herself from a chair or bed without experiencing pain.

The law is this area is clear. A plaintiff seeking to recover damages for personal injuries sustained in an automobile accident is required to plead and prove that he or she has sustained a "serious injury" as defined in Insurance Law §§5102(d) and 5104 (see Licari v. Elliott, 57 NY2d 230). Initially, it is for the Court to determine whether or not such an injury has been sustained, since "[t]he result of requiring a jury trial where the injury is clearly a minor one would perpetuate a system of unnecessary litigation" (id. at 237). However, where there are issues of fact regarding "serious injury", a jury trial is required.

In this case, it is the opinion of the Court that defendants and cross-moving plaintiff have each satisfied their individual burden of establishing that neither plaintiff sustained a serious injury in either accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 352). Thus, the supporting affirmations of their collective neurologists and orthopedists contain objective medical evidence that plaintiffs' cervical and lumbar sprains have resolved; that they have no neurological or orthopedic disability; and that they are fully capable of functioning normally, without assistance. Moreover, such decreases in the ranges of motion as were observed by PAPAGNI's orthopedist have been attributed to pre-existing degenerative disease in each plaintiff rather than being causally related to the subject motor vehicle accidents. [*9]

Nevertheless, the motions for summary judgment must be denied, as plaintiffs have successfully rebutted each of these prima facie showings by producing objective medical evidence sufficient to raise a triable issue of fact regarding their individual claims of serious injury. Here, the respective affidavits of plaintiffs' chiropractor clearly set forth the results of his objective testing of their cervical and lumbar spines, which he quantified and compared to normal (cf. Carditto v. Xenakis, 31 AD3d 683; Kauderer v. Penta, 261 AD2d 365). Moreover, the chiropractor detected spasms and tenderness in the lumbosacral and cervical spines of both plaintiffs, thereby reinforcing his opinion that they had sustained significant limitations of use or permanent consequential limitation of use of a body organ, member, function or system as a result of these accidents (cf. Lopez v. Senatore, 65 NY2d 1017; Mikl v. Shufelt, 285 AD2d 949, 950). So, too, does the fact that the MRI reports and other objective studies relied on by the chiropractor are stated to reveal lumbar and cervical disc bulges and herniations which he attributes to the accidents rather than any pre-existing degenerative disease. Finally, the measured limitations in use obtained by Dr. Abrams cannot be characterized as mild, minor or slight,[FN2] while any cessation or gap in treatment has been satisfactorily explained by an alleged termination of plaintiffs' no-fault benefits and their inability to afford further treatment.

Collectively, this proof is legally sufficient, with or without reference to the affidavits from the individual plaintiffs, to raise triable issues of fact regarding their claims of serious injury under both the significant limitation of use and permanent consequential limitation of use categories set forth in Insurance law §5102(d) (see generally Toure v. Avis Rent A Car Sys., 98 NY2d 345, supra). However, no triable issues of fact have been raised as to permanent loss, as there is no proof of any "total" loss of use of any body organ, member, function or system by either plaintiff (see Oberly v. Bangs Ambulance, 96 NY2d 295, 297, 299). The same is true of plaintiffs' claims that they were prevented from performing their usual daily activities during the 90/180 statutory period. Here, the available proof shows that MR. MASLINKA missed only a few days of work, and that his other daily activities were not significantly curtailed during the relevant period (see Palmer v. Moulton, 16 AD2d 933, 935). Similarly, no such evidence has been adduced as to MRS. MASLINKA, who made no claim for lost wages, and has failed to show that she was prevented from performing the greater part of her normal daily activities during the first 90 days following either accident. Thus, plaintiffs' claims of injury under each of these categories may not be considered at trial (see Palmer v. Moulton, 16 AD3d at 935).

Consonant with the above, the cross motion of plaintiff AGRON MASLINKA must also be denied, as the extent of injury sustained by plaintiff VASFIJE MASLINKA may not be determined without a trial.

Accordingly, it is

ORDERED that the motion and cross motions for summary judgment are denied in their entirety.

E N T E R, [*10]

S/

Robert J. Gigante, J.S.C.

Dated:December 14, 2006

mak Footnotes

Footnote 1: In cross-moving to dismiss the complaint of plaintiff VASFIJE MASLINKA, plaintiff AGRON MASLINKA adopts the arguments tendered by WELSBACH in support of its motion.

Footnote 2: Although unsworn and unaffirmed, the MRI and other diagnostic reports submitted by plaintiffs were reviewed by defendants' examining physicians and referred to in their reports. Accordingly, they are properly before the Court pursuant to Ayzen v. Melendez (299 AD2d 381).