Nathaniel v Caceresdepallares

[*1] Nathaniel v Caceresdepallares 2009 NY Slip Op 50942(U) [23 Misc 3d 1125(A)] Decided on April 7, 2009 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through June 3, 2009; it will not be published in the printed Official Reports.

Decided on April 7, 2009
Supreme Court, Bronx County

Lewelyn Nathaniel, Plaintiff,

against

A. Caceresdepallares, Daniel Lewis and Daniel Mullan, Defendants. Daniel Lewis and Ruthlyn Lewis, Plaintiffs, A. Caceresdepallares, and Daniel Mullan, Defendants.



Daniel Lewis and Ruthlyn Lewis, Plaintiffs,

against

A. Caceresdepallares, and Daniel Mullan, Defendants.



7877/05



Attorney for Plaintiff Lewis: Jay Hausman & Assoc, 914-946-3344

Attorney for Plaintiff Nathaniel: Spiegel & Barbato, 718-828-8200

Attorney for Defendant Lewis, Law Office of Mary Bjork: 914-899-3901

Attorney for Defendant Mullan, Kay & Grey, 516-229-4401

Attorney for Defendant Caceresdepallares, Richard Lau & Assoc, 516-229-6000

George D. Salerno, J.

The above-entitled actions, consolidated for a joint trial, are actions to recover damages for personal injuries allegedly sustained by Plaintiffs, LEWELYN NATHANIEL and DANIEL LEWIS, respectively, arising from a multi-car motor vehicle accident, which occurred on May 23, 2004, in the afternoon, near the intersection of East Gunhill Road and Gunther Avenue, in the Bronx.

THE MOTIONS:

The following six motions are all decided in this same Order:

"ACTION NO. 1"

(1) Defendant, CACERESDEPALLARES, moves for summary judgment dismissing Plaintiff NATHANIEL's Complaint based upon the contention that NATHANIEL did not sustain a "serious injury" as defined by Insurance Law §5102(d). [*2]

(2) Defendant, LEWIS, cross moves for summary judgment on the issue of liability, and, also, based on the contention that NATHANIEL did not meet the threshold requirements of a "serious injury".

(3) Defendant, DANIEL MULLAN, also, cross moves for summary judgment on the issue of liability, and based on the contention that NATHANIEL did not sustain a "serious injury".

"ACTION No. 2"

(4) and (5) Defendant DANIEL MULLAN, and Plaintiff LEWIS, each moves for summary in his favor on the issue of liability.

(6) Defendant, CACERESDEPALLARES, moves for summary judgment dismissing Plaintiff LEWIS' Complaint based upon the contention that DANIEL LEWIS did not sustain a "serious injury" as defined by Insurance Law § 5102(d).

I. LIABILITY

CACERESDEPALLARES' testimony

Defendant CACERESDEPALLARES was driving her 2000 Ford Taurus vehicle northbound on Gunther Avenue, toward its intersection with E. Gunhill Road, where there was a Stop sign. When she was fifteen to twenty meters behind the MULLEN vehicle, she initially saw MULLEN fully stopped at that Stop sign. At that time, CACERESDEPALLARES was allegedly traveling at about 15 miles per hour. MULLEN continued to be fully stopped for five seconds. Then, CACERESDEPALLARES admits that the whole "front of [her] car hit the back of the [stopped MULLEN] car." As a result of the impact, MULLEN was pushed into oncoming traffic on Gunhill Road, where she saw MULLAN's vehicle collide with LEWIS' vehicle. (CACERESDEPALLARES EBT, Feb. 2, 2007, p. 13-32, 55-56. CACERESDEPALLARES EBT, dated April 20, 2005, p. 7, 16-20).

In a conclusory fashion, CACERESDEPALLARES alleges that she was unable to halt her car prior to striking MULLAN's vehicle because her "brake wasn't catching". Other than supposedly applying her brakes, CACERESDEPALLARES did "nothing" to avoid striking the rear of MULLEN's vehicle. She did not apply her emergency brake; she did not turn her wheels away from the rear-end of MULLEN's vehicle; and she did not even sound her horn[FN1]. After the accident, her nephew drove her vehicle home, and the brakes functioned. CACERESDEPALLARES admitted that she did not know if her vehicle's brakes were ever repaired. (CACERESDEPALLARES EBT, Feb. 2, 2007, p. 13-46, 47-48, 54-55. CACERESDEPALLARES EBT, dated April 20, 2005, p. 16-21). —MULLAN's testimony

MULLAN was stopped on Gunther Avenue at the Stop sign at the intersection of Gunhill Road for approximately one minute while a pedestrian was crossing the street in front of him; and it was a clear and sunny day. As the result of the heavy impact when MULLEN was struck in the rear by CACERESDEPALLARES' vehicle, MULLAN lost consciousness. MULLAN awoke after the impact and found himself on the west-bound side of Gunhill Road— consequently, his vehicle was caused to cross four lanes of traffic before coming to a halt. Also, [*3]MULLAN was bleeding[FN2] from his head, at his temple over his left eye. (MULLAN EBT, Jan. 10, 2007, p. 7-23. MULLAN EBT, April 20, 2005, p. 25).

—LEWIS' testimony

DANIEL LEWIS was driving, westbound on Gunhill Road, with his passenger NATHANIEL. LEWIS had the right of way; there were no traffic control devices controlling his vehicle and the other traffic flowing with him westbound on Gunhill Road. LEWIS initially saw MULLEN's vehicle approximately two seconds prior to impact; and LEWIS said that he was traveling at about 15 miles per hour when MULLEN's vehicle crossed Gunhill Road and came at him from the opposite lane of traffic on Gunhill Road. The front of MULLEN's vehicle hit LEWIS' vehicle "head-on ... right plumb in [LEWIS'] lane", and then "bounced off". Upon seeing MULLEN, LEWIS applied his brakes, but was unable to avoid the immediate impact of the collision. (DANIEL LEWIS EBT, Oct. 17, 2006, p. 7, 12, 14-26, 39, 46-47).

LEWELYN NATHANIEL's testimony

NATHANIEL was seated in the front passenger side of

LEWIS' vehicle. When he first saw MULLEN's vehicle through the front windshield, MULLEN was about three feet away coming straight at them. MULLAN's vehicle, traveling at about 30 to 40 miles per hour, hit the front middle of the LEWIS vehicle. (NATHANIEL EBT, p. 21-27).

Discussion

In sum, those parts of the motions and cross motions seeking summary judgment on liability are decided as follows:

Defendant CACERESDEPALLARES' negligence caused the accident; and Defendants MULLAN and LEWIS are granted summary judgment dismissing any claims and cross claims asserted against them.

As to CACERESDEPALLARES

Liability is imposed upon CACERESDEPALLARES, since she did not present an adequate non-negligent explanation for rear-ending the stopped MULLAN vehicle. It is well-established that: " "a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the second vehicle" and "the injured occupants of the front vehicle are entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form, for the collision"." [emphasis added] Figueroa v. Luna, 281 AD2d 204, 206 (1st Dept. 2001).

Moreover, "in a chain-reaction collision, responsibility presumptively rests with the rearmost driver." Mustafaj v. Driscoll, 5 AD3d 138, 138-139 (1st Dept. 2004).

In attempting to support Defendant CACERESDEPALLARES' position, her Counsel merely cites Mitchell v. Gonzalez, 269 AD2d 250, 251 (1st Dept. 2000), which reiterates that: "A rear-end collision with a stationary vehicle creates a prima facie case of negligence, requiring judgment for plaintiffs unless defendant can proffer a non-negligent explanation for her failure to maintain a safe distance between the cars ... A driver is expected to drive at a sufficiently safe [*4]speed and to maintain enough distance [FN3] between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions." [emphasis added] Mitchell v. Gonzalez, supra , 269 AD2d at 251.

However, the Mitchell Court does not support CACERESDEPALLARES', unsubstantiated, excuse about brake failure. On the contrary, the defendant in Mitchell was found liable, and the Court even held that the argument "that defendant's car had been unable to stop in time because the roadway was wet" was insufficient "to rebut the presumption of negligence". Mitchell, supra .

Not only does CACERESDEPALLARES fail to provide appropriate case law to support her conclusory argument that her purported brake failure is a sufficient non-negligent explanation, CACERESDEPALLARES also fails to particularize her ostensible excuse with details, or provide supporting documentation.

CACERESDEPALLARES and her Counsel do not submit an affidavit by a mechanic describing what was allegedly wrong with her brakes, and, do not even submit a repair bill. Rather, CACERESDEPALLARES repeatedly concedes that she does not know if her vehicle's brakes underwent repairs before, or after, the accident. Yet, she did know that the body of her vehicle was repaired. Inexplicably, the brakes functioned immediately after the accident, since her nephew was able to drive the car home without incident. Moreover, CACERESDEPALLARES admits that she did not even begin to pump her brake until she was 15 feet away from the MULLEN vehicle.[FN4] "There were no sounds of brakes, horns or screeching tires prior to the accident."[FN5]

Under the circumstances presented here, CACERESDEPALLARES' Counsels' opposition is frivolous and they are advised against maintaining such untenable positions in the future.

As to MULLAN

MULLAN established his prima facie entitlement to judgment as a matter of law by demonstrating that he was not negligent since his vehicle was lawfully stopped at a Stop sign when CACERESDEPALLARES rear-ended his vehicle, propelling it into LEWIS' vehicle. Where, as here, a rear-most driver "rear-ended [a defendant named] Lugo, propelling Lugo into the vehicle in which plaintiff was a passenger", Lugo (the "middle car") was granted summary judgment dismissing the case against him, since "plaintiff failed to raise a triable issue sufficient [*5]to defeat Lugo's motion for summary judgment." Mustafaj v. Driscoll, 5 AD3d 138, 138-139 (1st Dept. 2004). A defendant who was lawfully stopped when he was hit in the rear and pushed into the vehicle in front of him, established an adequate non-negligent explanation for his part in the accident, and his motion for summary judgment dismissing the complaint against him should have been granted. Harriott v. Pender, 4 AD3d 395, 397 (2d Dept. 2004). See Sherin v. Roda, 14 AD3d 604, 605 (2d Dept. 2005).

A case very similar to the case at bar involved a defendant named Akey who, just like MULLAN, "was rendered unconscious when his vehicle was struck [in the rear] by [a defendant] Joyal's vehicle, causing his vehicle to cross over into the oncoming lane of travel." Baker v. Joyal, 4 AD3d 596, 597 (3d Dept. 2004). In Baker, as here, "plaintiff offered no evidence whatsoever to contradict defendant's reasonable excuse for crossing into the wrong lane and no evidence that defendant caused the initial collision with [defendant] Joyal's vehicle." The Court held that: "it is proper for the court to determine the issue [of the reasonableness of the excuse] when there is no evidence to the contrary and no rational process by which a jury could find for the plaintiff." Baker v. Joyal, supra , 4 AD3d at 597. Likewise, our Courts have consistently held that lawfully-stopped vehicles, like MULLAN's vehicle, do not have to anticipate being struck in the rear and propelled into the traffic flowing in the opposite direction. See Fiscella v. Gibbs, 261 AD2d 572, 573-574 (2d Dept. 1999). In Fiscella, a defendant named Cone, stopped in the west-bound lane of the roadway, was struck in the rear by a vehicle which caused Cone's vehicle to be propelled, from the west-bound lane, "into the east-bound lane of traffic where it collided with the plaintiffs'" oncoming vehicle. Fiscella v. Gibbs, 261 AD2d 572, 573-574 (2d Dept. 1999). Presented with these facts, the Fiscella Court held that defendant Cone was not negligent as a matter of law, and entitled to summary judgment dismissing the complaint. "Contrary to the plaintiffs' contention, the fact that [Cone] may have had her wheels turned to the left in anticipation of a turn prior to her being struck in the rear does not raise a triable issue of fact. The driver of a vehicle which is lawfully stopped and waiting in traffic to make a left turn across traffic does not have a duty to anticipate a rear-end collision and to turn its wheels in light of such a risk." Fiscella v. Gibbs, supra , 261 AD2d at 573-574. Even "assuming the existence of some evidence to support the plaintiffs' wheel-turning theory, ... as a matter of law, it is not negligent for a driver to turn his wheels to the left while waiting at an intersection to make a left turn." Stretch v. Tedesco, 263 AD2d 538, 539 (2d Dept. 1999).

-As to LEWIS

LEWIS is entitled to summary judgment because he had the right of way when presented with an emergency situation, not of his own making; and he was not required to anticipate that he was going to be struck head-on by an uncontrolled vehicle propelled towards him across several lanes of traffic and across the double yellow line. In a recent First Department case which also involved a vehicle which, after being struck, "spun out of control, [and] crossed the double line", the court set forth the following well-established principal: A driver in his proper lane is not required to anticipate that an automobile going in the opposite direction will cross over into his lane of traffic (Caban v Vega, 226 AD2d 109, 111, 640 NYS2d 58 [1996]). Such a cross-over scenario presented [defendant] Mark [*6]Williams with an emergency situation not of his own making (see Williams v Econ, 221 AD2d 429, 633 NYS2d 392 [1995]). In cases where the crossover and collision occur almost instantaneously, the driver in the proper lane cannot be considered negligently responsible for any part of the accident (see Gonzalez v City of New York, 295 AD2d 122, 742 NYS2d 301 [2002]), notwithstanding the anticipatory slow-down by driver [defendant] Williams. Summary judgment is appropriate in these circumstances.

Williams v. Simpson, 36 AD3d 507 (1st Dept. 2007).

Likewise, another similar case involves a defendant named Walsh who, like LEWIS, was driving with the right of way when he was struck by a vehicle driven by a "codefendant Taek Kyung Lee [who had] lost control of his vehicle after it was struck in the rear by an unidentified vehicle, and ... then crossed over a median strip into the path of oncoming traffic, where it collided with the appellant's vehicle". The Court granted Walsh summary judgment in his favor, holding that: Since the collision occurred within seconds of when the appellant first saw the vehicle driven by Taek Kyung Lee crossing over the median at a high rate of speed, the emergency doctrine applies, and any alleged failure by the appellant to exercise his best judgment was insufficient to constitute negligence (see Dormena v Wallace, supra ; Bentley v Moore, 251 AD2d 612, 613, 675 NYS2d 108 [1998]; Cortes v Edoo, 249 AD2d 501, 502, 671 NYS2d 360 [1998]; Fermin v Graziosi, 240 AD2d 365, 658 NYS2d 404 [1997]). The plaintiffs' submissions in opposition to the motion failed to raise a triable issue of fact as to whether the appellant's reaction to the emergency was unreasonable, or whether any negligence on his part before the cross-over contributed to bringing about the emergency (see Stoebe v Norton, 278 AD2d 484, 485, 718 NYS2d 642 [2000]; Turner v Mongitore, 274 AD2d 512, 711 NYS2d 478 [2000]; see also Eichenwald v Chaudhry, supra ). Accordingly, the appellant's motion for summary judgment should have been granted.

Lee v. Ratz, 19 AD3d 552, 553 (2d Dept. 2005).

Similarly, a driver named Kohl, like LEWIS, was struck by a vehicle which had crossed "the median strip of the highway and enter the flow of traffic in the opposing direction". Tenenbaum v. Martin, 131 AD2d 660, 660-661 (2d Dept. 1987). The Court held that "Kohl was confronted with an emergency not of his own making and without an opportunity for deliberation. Under the emergency circumstances present, Kohl was not obligated to exercise his best judgment and an error of judgment on his part is not to be considered negligence." Tenenbaum v. Martin, supra , 131 AD2d at 660-661.

Accordingly, LEWIS, and MULLAN, were not negligent: "each was faced with a sudden and unexpected circumstance not of his own making" — the CACERESDEPALLARES vehicle rear-ended MULLAN and propelled him across several lanes of traffic into LEWIS' vehicle— "that left him with virtually no time for reflection as to how to avoid a collision." Alamo v. McDaniel, 44 AD3d 149 (1st Dept. 2007).

Conclusion on Liability

In both Actions, those parts of MULLAN's motions which seek summary judgment in his [*7]favor as to liability are granted; and the claims of all Plaintiffs, NATHANIEL and LEWIS, and any cross claims asserted against MULLAN, are dismissed against MULLAN.[FN6]

In "Action 1", Defendant LEWIS' cross motion for summary judgment in his favor as to liability is granted; and NATHANIEL's claims, and any cross claims asserted against LEWIS, are dismissed against him.

In "Action No. 2", Plaintiff LEWIS' cross motion for summary judgment in his favor as to liability is granted as against Defendant CACERESDEPALLARES only.

II. DANIEL LEWIS — SERIOUS INJURY — "ACTION NO. 2"

Defendant CACERESDEPALLARES moves for summary judgment premised on the contention that Plaintiff DANIEL LEWIS did not sustain a "serious injury" pursuant to Insurance Law 5102(d), which provides that: "Serious injury" means a personal injury which results in ... permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

In support of her motion, Defendant submits the report of a neurologist, Naunihal Sachdev Singh, who examined LEWIS on one occasion, on December 27, 2006. Dr. Singh's diagnosis was that LEWIS sustained sprains of the lumbar and cervical spines. As far as LEWIS' cervical spine, Dr. Singh acknowledged that LEWIS' range of neck movements were impaired: using a goniometer, a tool which objectively measures ranges of motion, he found that right and left lateral rotation was 70 degrees — but that 80 degrees would be normal. (See Dr. Singh's Report, dated Dec. 27, 2006, p. 3). However, Dr. Singh fails to explain the significance, if any, of his positive findings.

In a case where "the defendant's examining neurologist found that the plaintiff continued to have restrictions in motion of her cervical spine approximately two years after the accident," the Court held that "the defendant did not meet her initial burden on her motion." Mullen v. Lauffer, 31 AD3d 402 (2d Dept. 2006).

Also, where, as here, "defendants' submissions were contradictory: [and] some of their submitted medical reports and opinions indicate that objective tests were negative, and others [*8]reflect limitations in the range of motion of the [plaintiff's] spine, ... and herniated and bulging discs, ...the contradictory findings raise a triable issue of fact." Martinez v. Pioneer Transp. Corp., 48 AD3d 306 (1st Dept. 2008).

Dr. Singh lists certain medical records that were submitted for his review, but he does not actually state that he reviewed them. Since he does not comment on them, it cannot be assumed that he did so. The records which he lists, but fails to address, include, for example, the MRI scan of the cervical spine performed on June 10, 2004; the MRI scan of the lumbar spine performed on June 23, 2004; the report of the NCV studies of the upper and lower extremities performed on June 16, 2004; the report of the EMG and NCV studies of the lower extremities performed on June 8, 2005; and Dr. Elfiky's neurological reports. [FN7]

Under circumstances similar to those in the case at bar, the First Department recently held that defendants failed to meet their initial burden of establishing that plaintiff had not sustained "serious injury" within the meaning of Insurance Law § 5102(d), where defendants' expert fails to address MRI reports indicating herniated and bulging discs and other documentary evidence of "serious injury": Defendants' medical expert, who examined plaintiff four years after her ... accident, reviewed only the police accident report and the bill of particulars, and did not address any of plaintiff's medical records, including reports of examinations in May and July 2003 revealing diminished range of motion, in specified degrees, in the cervical, thoracic, lumbar, and sacral hip areas, as well as a June 2003 MRI report indicating disc bulges and herniation. ... where, as here, a defendant's expert fails to address "not only MRI reports indicating herniated discs but other evidence of serious injury as well," the defense has not met its initial burden on summary judgment... Even if defendants were deemed to have made a prima facie showing, a triable issue of fact was raised by plaintiff's evidence, including her expert's affirmed report of an examination showing a continued quantified loss of range of motion after defendant's expert's examination. [emphasis added]

Shumway v. Bungeroth, 58 AD3d 431 (1st Dept. Jan 2009).

Similarly, in another case, the First Department recently held as follows: Defendants failed to meet their initial burden of establishing, prima facie, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) [where] the affirmed reports of the neurologist and orthopedist who examined plaintiff failed to ... address the objective findings of plaintiff's MRIs showing, inter alia, herniated and bulging discs (see Nix v Yang Gao Xiang, 19 AD3d 227, 798 NYS2d 5 [2005]). Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion (see Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [2006]). [emphasis added]

Caballero v. Fev Taxi Corp., 49 AD3d 387 (1st Dept. 2008).

Likewise, defendants' motions to dismiss were "properly denied on the ground that [*9]defendants' expert did not address the MRI reports showing herniated discs, which in conjunction with other evidence was indicative of serious injury." (Patterson v. Rivera, 49 AD3d 337 [1st Dept. 2008] ), and where defendant's expert failed to address plaintiff's objective tests that were indicative of a serious injury, namely, "MRI reports [which] documented herniations of the spine, some of which were encroaching on the neural foramina, and EMG test results [which] documented neurological sequelae resulting therefrom." (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006] ). See Nix v. Yang Gao Xiang, 19 AD3d 227 (1st Dept. 2005).

Thus, it is not clear that Dr. Singh's opinion is sufficient to meet Defendant's initial burden on summary judgment. However, even if Defendant was deemed to have made a prima facie showing, Plaintiff LEWIS' evidence raises issues of material fact as to two "serious injury" categories, namely, whether 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." Toure v. Avis Rent a Car Sys., 98 NY2d 345, 352 (2002).

Plaintiff LEWIS' submissions include: the sworn Affidavit of the radiologist, Dr. David Stemerman, pertaining the MRI of Plaintiff's Lumbar Spine, dated June 23, 2004, and the MRI of Plaintiff's Cervical Spine, dated June 10, 2004 (Plaintiff LEWIS' Exhibit "C"); the comprehensive Affidavit of Plaintiff's treating neurologist, Dr. Ahmed Elfiky, dated Oct. 11, 2007; Dr. Elfiky's affirmed reports and records (Plaintiff LEWIS' Exhibit "E"); the certified treatment records from "Accurate Medical", including NCV studies of upper and lower extremities, dated June 16, 2004, and Range of Motion (ROM) test, dated June 7, 2004 (Plaintiff LEWIS' Exhibit "F"); the certified medical records from "Complete Care" with Dr. Hausknecht's affirmed NCV/EMG report dated June 8, 2005 (Plaintiff LEWIS' Exhibit "D"); the Affirmed report of Dr. Hausknecht, dated Sept. 27, 2007 (Plaintiff LEWIS' Exhibit "G"); the certified therapy records from "Dynamic Healthcare" (Plaintiff LEWIS' Exhibit "B"); and the Affidavit of Plaintiff, DANIEL LEWIS, dated Sept. 14, 2007. (See Plaintiff LEWIS' Opposition, dated Oct. 10, 2007).

The MRIs are objective tests which substantiate Plaintiff LEWIS' claim of serious injury.[FN8] The MRI of the Lumbar Spine, taken on June 23, 2004, soon after the accident, showed "posterior herniations at L4-5 and L5-S1." The MRI of the Cervical Spine, taken on June 10, 2004, showed: straightening of the Cervical Spine consistent with muscle spasm; disc bulges at C2-3, C3-4, C4-5, and C5-6, and C6-7; narrowing of the left neural foramen at C3-4 and both neural foramen at C4-5 through C6-7; and loss of disc height at C4-5 and C5-6. (See affirmed MRI Reports, Plaintiff LEWIS' Exhibit "C". Dr. Ahmed Elfiky's Aff, dated Oct. 11, 2007, p. 8).

Dr. Elfiky's detailed Affidavit also substantiates LEWIS's claim that he suffered a "serious injury".[FN9] Dr. Elfiky explains the particulars of LEWIS' course of treatment, examinations, and medical tests, beginning from May 26, 2004 and continuing until the present.

Dr. Elfiky describes the tests he performed during his physical examinations as being [*10]objective, based upon what he felt (palpated), saw, and heard: he palpated LEWIS' his cervical and lumbosacral spines, hips, legs, and musculature; and performed cervical and lumbosacral compression tests, and manual muscle tests, for weakness and instability.[FN10]

Dr. Elfiky's initially examined LEWIS on May 26, 2004, just 3 days after the accident; LEWIS was then 42 years old, having been born in December 1961.[FN11] Dr. Elfiky found: "moderate suboccipital tenderness and multiple areas of tenderness along the cervical spine, more so on the right side; paraspinal muscle spasm of the cervical spine; [and] moderate paraspinal multiple areas of tenderness along the lumbar spine with paraspinal muscle spasms."[FN12]

Further, on May 26, 2004, LEWIS also underwent a lower extremity somato sensory evoked potential study "which was abnormal because of the conduction asymmetry between the right and left potentials, and [was] suggestive of a conduction defect at the level of L3-L4 on the right side."[FN13]

In addition, the computerized muscle testing and range of motion testing performed on June 7, 2004 "revealed a total cervical range of motion and ankylosis impairment of 19%; ... a total lumbar range of motion and ankylosis impairment of 5%; and a final whole person impairment of 23% ."[FN14]

Also, Dr. Elfiky referred LEWIS for Electromyograph/ Nerve Conduction (EMG/NCV) studies, which were performed on June 16, 2004 and June 8, 2005, respectively.[FN15] Dr. Elfiky explains that: "the EMG testing procedure is ... the definitive method of objectively diagnosing nerve injury and damage." [FN16] The June 16, 2004 test revealed abnormal NCV of the lower extremities consistent with lumbar radiculopathy, and abnormal NCV of the upper extremities consistent with cervical radiculopathy. The June 8, 2005 test revealed bilateral L4-5 radiculopathy. In this regard, Dr. Elfiky notes that radiculopathy results from compression or [*11]inflammation of nerve roots causes by trauma.[FN17]

Dr. Elfiky performed followup examinations of LEWIS on July 21, 2004, Aug. 18, 2004, Nov. 2004, July 31, 2007, and Sept. 21, 2007, the particulars of which are more fully set forth in his Affidavit, and need not all be repeated here.[FN18]

As far as treatment, it is noted that LEWIS was prescribed and underwent intensive physical therapy, chiropractic care, and acupuncture treatments, for eight months at Dynamic Health Care, followed by a home exercise program. Then, in June 2007, LEWIS underwent a three-month physical therapy program with a physiatrist, Dr. Garg.[FN19]

From July 31, 2007 until Sept. 27, 2007, Dr. Elfiky administered, to LEWIS, three (3) paravertebral facet nerve block injections at C-6, C6-7, and L5-S1 — to ease the radicular back pain. Further physical therapy was prescribed by Dr. Elfiky.[FN20] The thorough range of motion tests performed by Dr. Elfiky during the September 21, 2007 examination revealed that, more than three years after the accident, LEWIS still suffered diminished ranges of motion in his lumbar and cervical spine, with respect to all aspects of flexion, extension, and rotation.[FN21]

Accordingly, Dr. Elfiky concludes that, as a result of the subject accident: LEWIS sustained a "permanent loss of function of the lumbosacral and cervical spines"; due to "anatomical and structural damage". Moreover, the injuries are evident "clinically by muscle spasm, muscle weakness, decreased range of motion, paraspinal muscle tenderness and midline tenderness." [FN22] Dr. Elfiky explains that: "muscle spasms are objective indicia of a neuromuscular disorder afflicting the muscles and their fascia." Dr. Elfiky also concludes that: LEWIS' "medical injuries will permanently cause him pain, and will permanently continue to impair and limit his ability to perform ordinary daily activities." [FN23]

It is well-established that a plaintiff raises "a triable issue of fact by providing objective [*12]evidence of a permanent disability causally related to the accident (see e.g. Engles v Claude, 39 AD3d 357, 835 NYS2d 52 [2007])." [emphasis added] Ayala v. Douglas, 57 AD3d 266 (1st Dept. 2008). In Ayala, as in the case at bar, plaintiff "submitted an affidavit by a physician who diagnosed a herniated disc and ... quantified limitations in the ranges of motion of the lumbar spine and ... opined that the injuries were causally related to the accident, and a radiologist's report that the MRI of plaintiff's ... cervical spine showed straightening of the normal lordosis, and the MRI of his lumbar spine revealed disc herniation." Ayala v. Douglas, 57 AD3d 266 (1st Dept. 2008). See Toure v. Avis Rent a Car Sys., supra , 98 NY2d at 255.

In another case with similarities to the case at bar, the Court held that: "the affirmation of plaintiff's treating physician, based upon six physical examinations of plaintiff over the course of 17 months beginning shortly after the accident, included her findings of limited ranges of motion in the lumbar and cervical spine ..., which she assigned specific percentages and compared to the normal range, ... met the minimal standard required to substantiate a claim of "serious injury" pursuant to Insurance Law § 5102 (d)." Silva v. Vizcarrondo, 31 AD3d 292 (1st Dept. 2006). Iacovazzo v. Ahmad, 27 AD3d 421 (2d Dept. 2006).

Where "conflicting medical evidence is offered on the issue of whether a plaintiff's injuries are permanent or significant, and varying inferences may be drawn, the question is one for the jury (see Noble v Ackerman, 252 AD2d 392, 395, 675 NYS2d 86 [1998])." Martinez v. Pioneer Transp. Corp., supra , 48 AD3d 306 (1st Dept. 2008).

Therefore, CACERESDEPALLARES' motion to dismiss LEWIS' case based upon the allegation that LEWIS did not sustain a "serious injury" is denied; and there remains to be determined at trial whether, as a result of the accident, LEWIS sustained a "serious injury", and the amount of damages.

III. SERIOUS INJURY - LEWELYN NATHANIEL - ACTION NO. 1

The respective motions of Defendants CACERESDEPALLARES, LEWIS, and MULLAN, for summary judgment in their favor upon the ground that Plaintiff, NATHANIEL, did not sustain a "serious injury", are denied.

In support of their motion, Defendants submit the reports of Dr. Naunihal Sachdev Singh, a neurologist, who examined NATHANIEL on Dec. 20, 2006; Dr. Menachem Epstein, an orthopedic surgeon, who examined him on Dec. 20, 2006; and Dr. Alan Greenfield, who reviewed the MRI of the Right Shoulder on Feb. 5, 2007.

Dr. Epstein summarizes his position by stating that he "performed and recorded specific ranges of motion measurements for each injured body area claimed. The measurements compared to the generally accepted norms for range of motion with no degenerative, congenital or age-related factor relevant to these measurements." [emphasis added] (See Dr. Epstein's Dec. 28, 2006 report, p. 5).

However, Defendants' own expert doctors contradict each other as to what the normal ranges of motion would be for right shoulder forward elevation and abduction. In assessing Plaintiff NATHANIEL's right shoulder range of motion, for forward elevation, and for abduction, Dr. Epstein states that these measured 170 degrees, respectively, and that 170 degrees [*13]would be normal for each.[FN24] However, Dr. Singh stated that 180 degrees would be the normal measurements for flexion and for abduction, respectively.[FN25] Likewise, Dr. Louis Rose — Plaintiff's orthopaedic surgeon— stated that 180 degrees would be normal for forward flexion and for abduction. [FN26]

In light of this contradiction among the doctors as to what the norm would be, it cannot be determined if Dr. Epstein's findings mean that Plaintiff NATHANIEL's forward elevation, and abduction, respectively, were ten (10) degrees less than normal.

"Contradictory findings raise a triable issues of fact." See Martinez v. Pioneer Transp. Corp., supra .

In addition, Defendants' own expert doctors' opinions are not consistent with respect to their allegations regarding degeneration. Dr. Greenfield, in a conclusory fashion, attributes the "osteoarthropathy of the AC joint abutting the musculotendinous junction of the, supra spinatus" to degeneration, and states that this finding, as well as the "tendinosis of the, supra spinatus tendon", are longstanding. (See Dr. Greenfield's Feb. 5, 2007 MRI Report of the Right Shoulder).

However, this is completely undermined by Dr. Epstein's opinion that there were no relevant degenerative, congenital, or age-related, factors.[FN27] In this regard, it is significant that Plaintiff states that he had no prior injuries to his Right Shoulder.[FN28] Moreover, Dr. Rose avers that it was as a direct result of the May 23, 2004 motor vehicle accident that this young, 36-year old, man sustained the "permanent partial disability to his Right Shoulder."[FN29]

Dr. Epstein acknowledged that the MRI of the Right shoulder, dated Aug. 21, 2004, showed tendinosis and impingement of the rotator cuff[FN30]; and that he reviewed certain medical records — for example, fellow orthopaedic surgeon Dr. Rose's evaluations, dated Sept. 12, 2004, Sept. 20, 2004, Nov. 3, 2004, and April 10, 2006 "status post cortisone injection". However, Courts have held that defendants do not meet their initial burden on summary judgment where they fail to address the objective findings of a "serious injury" in a plaintiff's MRI, and treating [*14]records — such as in the MRI of NATHANIEL's Right Shoulder and Dr. Rose's reports herein. See Shumway v. Bungeroth, supra .

It is noted that, as to Plaintiff's Right Shoulder injury, Dr. Singh defers to an orthopaedic surgeon; and so Dr. Singh's report does not aid Defendants in meeting their initial burden on summary judgment.

Nevertheless, even if Dr. Epstein's and Dr. Greenfield's opinions are sufficient to meet Defendants' initial burden, Plaintiff's evidence herein raises issues of fact as to two "serious injury" categories, namely: a "permanent consequential limitation of use of a body organ or member" or a "significant limitation of use of a body function or system". Toure v. Avis Rent a Car Sys., supra , 98 NY2d at 352.

Plaintiff, NATHANIEL's submissions include: the Affirmation of Dr. Louis Rose, an orthopaedic surgeon, dated Aug. 2, 2007; the MRI Report of the Right Shoulder, by Dr. David Stemerman, dated Aug. 21, 2004; and the Affidavit of the Plaintiff NATHANIEL, dated Sept. 28, 2007. (See Plaintiff NATHANIEL's Opp, dated Oct. 5, 2007).

The aforementioned MRI of Plaintiff's Right Shoulder, taken soon after the accident — which was reviewed by Defendants' experts and Plaintiff's treating doctor — is an objective test which substantiates Plaintiff's claim of a "serious injury". It is well-established that: "an MRI constitutes objective evidence providing an ample medical foundation in support of a patient's subjective complaints of extreme pain ... , and thus raises a triable issue on the question of "serious injury"." Lesser v. Smart Cab Corp., supra , 283 AD2d 273, 274 (1st Dept. 2001).

The MRI of the Right Shoulder showed: "tendonitis and impingement of the rotator cuff"; and that: "there is an abnormal signal noted in the, supra spinatus tendon consistent with tendinosis.... There is AC joint hypertrophy impinging on the rotator cuff interval. The biceps tendon is situated in the bicipital groove. There is a cyst in the humeral head." (See MRI Report of the Right Shoulder, by Dr. David Stemerman, dated Aug. 21, 2004).

Even Defendants' expert radiologist, Dr. Greenfield, (who reviewed the same August 21, 2004 MRI that Dr. Stemerman reviewed), acknowledges that the MRI showed that there is "tendinosis of the, supra spinatus tendon"; and that "bony spur formation along the undersurface of the AC joint is in contact with the musculotendinous junction of the, supra spinatus, consistent with bony impingement." (See Dr. Greenfield report, dated Feb. 5, 2007). However, without explaining his rationale, he speculates that these were "longstanding". It has been held that: an expert's affirmation does not support "an inference that plaintiff's problems related to [a] prior injury" where he did not review medical records relating thereto. Webb v. Johnson, 13 AD3d 54 (1st Dept. 2004). Herein, Plaintiff denied any prior injury to his Right Shoulder, so there do not exist medical records relating to a prior injury. (See NATHANIEL Aff, dated Sept. 28, 2007). Moreover, Dr. Greenfield did not review any of NATHANIEL's medical records.

In his detailed Affirmation, Dr. Rose substantiates that Plaintiff NATHANIEL suffered a "serious injury". During his initial physical examination on Sept. 14, 2004 — shortly after the Aug. 21, 2004 MRI — by objective clinical testing, Dr. Rose found as follows: "positive impingement signs with 4/5 strength with provocative testing of the rotator cuff. There were altered sensibility to light touch in the dermatomes of the upper extremity in the C5 and C5 dermatome on the right when compared to the left. There was tenderness to direct palpation about the AC joint and the anterior capsule as well as the subacromial region." (See Dr. Rose's [*15]Aug. 2, 2007 Aff, p.2).

Furthermore, with regard to range of motion, Dr. Rose found: "forward flexion was to 100 degrees, normal being 180 degrees; abduction was to 95 degrees, normal being 180 degrees. On internal rotation, the patient could reach with his hand to the right sacroiliac joint. External rotation was to 70 degrees, normal being 80 degrees." [FN31] Dr. Rose's clinical finding were consistent with the "tendinosis and impingement of the rotator cuff" which he saw on the MRI.[FN32]

Dr. Rose states that he followed NATHANIEL "on a regular monthly basis", and, during his most recent examination of the Right Shoulder, he found that range of motion was, still: "limited at the extremes with tenderness over the AC joint and subacromial space and mild pain with impingement testing. Strength was 4+/5 with abduction and external rotation against resistance when compared to the unaffected side."[FN33]

As for the course of treatment, Dr. Rose treated Plaintiff with cortisone injections to the subacromial space. However, Dr. Rose, concerned that continued treatment with further cortisone injections would prove fruitless since such treatment had failed in the past, believes that the only remaining alternative would be surgery: "subacromial decompression and debridement of the rotator cuff, followed by a course of physical therapy postoperatively for a period of three to six months." [emphasis added] [FN34] In this regard, NATHANIEL avers that he has no private insurance coverage, and that, since his no-fault coverage was cut off, he could not afford treatment and surgery. (See NATHANIEL Aff, dated Sept. 28, 2007, p. 3). It has been recently established that a "plaintiff adequately explained the significant gap in [his] treatment history by stating in [his] affidavit that [he] stopped treatment about four to five months after the subject accident because [his] no-fault insurance was cut off and [he] could not afford to personally pay for further treatment." Jules v. Barbecho, 55 AD3d 548 (2d Dept. 2008). See Domanas v. Delgado Travel Agency, Inc., 2008 NY Slip. Op. 9349, 1 (2d Dept. 2008).

Dr. Rose's conclusion was that Plaintiff sustained a: "permanent partial disability to his right shoulder ... which has created a post-traumatic tendonitis and busitis causing difficulty with use of the right shoulder. The patient has difficulty at work using tools and with overhead activities, as well as with activities of daily living and it is my opinion that the patient will have symptoms on a permanent basis." [emphasis added] [FN35] A plaintiff may raise a triable issue of fact by providing evidence of a permanent disability causally related to the accident. [emphasis added] Ayala v. Douglas, supra , 57 AD3d 266 (1st Dept. 2008). [*16]

Plaintiff, to this day, is unable to lift his right arm above his shoulder; and lift or use various tools at work, such as a hammer — due to this injury which results in throbbing pain in his right shoulder and the persistent locking of his right shoulder (See NATHANIEL Aff, dated Sept. 28, 2007).

The Court of Appeals has established that: "in order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury ... [and] an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system ... When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact." [emphasis added] Toure v. Avis Rent a Car Sys., 98 NY2d 345, 350-351 (2002). In Toure, although Dr. Waltz's affirmation did not ascribe a specific percentage to the loss of range of motion in plaintiff's spine, the Court held that "he sufficiently describes the "qualitative nature" of plaintiff's limitations "based on the normal function, purpose and use of the body part" ... Dr. Waltz further attributes the limitations in plaintiff's physical activities to the nature of the injuries sustained by opining that plaintiff's "difficulty in sitting, standing or walking for any extended period of time and his inability to lift heavy boxes at work are a natural and expected medical consequence of his injuries"." Since Dr. Waltz's opinion was supported by objective medical evidence of MRI reports, "paired with his observations of muscle spasms during his physical examination of plaintiff, [c]onsidered in the light most favorable to plaintiff, this evidence was sufficient to defeat defendants' motion for summary judgment ...We cannot say that the alleged limitations of plaintiff's back and neck are so "minor, mild or slight" as to be considered insignificant within the meaning of Insurance Law § 5102 (d)." Toure v. Avis Rent a Car Sys., supra , 98 NY2d at 353.

In this vein, in a recent First Department case, the Court held: "whether plaintiff suffered a serious injury is a factual issue raised by his treating physician's affirmation. Plaintiff's doctor's affirmation correlates plaintiff's claimed inability to engage in his customary daily activities for over six months following the accident to quantified range of motion limitation findings based upon his own physical examination and upon the positive MRI reports, ... [which were] first been offered and relied on by defendants." Chatah v. Iglesias, 5 AD3d 160, 161 (1st Dept. 2004).

Likewise, Dr. Rose, who has continuously treated and followed Plaintiff NATHANIEL, substantiates the "serious injury" by clinical findings of diminished ranges of motion in his right shoulder, for which, in his initial examinations, he designated numeric percentages. Based upon his clinical findings on his most recent examination, as well as the objective MRI Reports, Dr. Rose "qualitatively" assesses that NATHANIEL's "permanent" tendonitis and bursitis restrict him from performing overhead activities, and using tools at work. Under the circumstances, given this opinion, which includes a diagnosis of a permanent disability in a relatively young man, made by a well-respected orthopaedic surgeon Dr. Rose, there remain questions of fact to be determined at trial. This Court cannot make credibility determinations, or determine that, as a matter of law, these permanent limitations are so "minor, mild or slight" as to be considered insignificant within the meaning of the Insurance Law. A plaintiff's physician, like Dr. Rose, may [*17]describe the qualitative nature of a plaintiff's limitations, based on the normal function, purpose and use of body parts, and correlate a plaintiff's injury with his inability to perform certain normal, daily tasks; he need not assign a quantitative percentage to the loss of range of motion. Toure v. Avis Rent a Car Sys., supra , 98 NY2d at 355.

In a case quite similar to the instant matter which also involved a right shoulder tendinosis, the Court held that a plaintiff had raised sufficient questions of fact, stating as follows: we find that [plaintiff's] burden satisfied by the submission of [Dr.] Cicoria's affidavit ... [explaining] that he initially chose to implement a conservative course of treatment to avoid surgery. Despite plaintiff's continuing progression and faithful compliance with the treatment plan, her symptoms were not alleviated. ... Although the medical and physical therapy records denote significant improvement at times, there were marked swings in strength and range of motion of her right shoulder. The MRI showed significant tendinosis and capsular redundancy of the right shoulder which confirmed the necessity for [Dr.] Cicoria to perform shoulder arthroscopy and an open inferior capsular shift operation for stabilization. At all times, [Dr.] Cicoria averred that it was his opinion that plaintiff suffered from a multidirectional instability of the right shoulder that was causally related to the accident and led to the requirement for stabilization surgery. This evidence, further buttressed by plaintiff's deposition testimony, demonstrated more than " 'subjective complaints of pain unsupported by credible or objective medical evidence or documentation' " (Delaney v Lewis, 256 AD2d 895, 897, supra , quoting Kimball v Baker, 174 AD2d 925, 926) or simply " 'a mild, minor or slight limitation of use' " ( Booker v Miller, 258 AD2d 783, 784, quoting King v Johnston, 211 AD2d 907). [emphasis added]

Jones v. Norwich City Sch. Dist., 283 AD2d 809, 812 (3d Dept. 2001).

In another analogous case involving a right shoulder injury decided just last month, the First Department held that a plaintiff raised a triable issue of fact as to serious injury by evidence: "presented in the form of an affidavit by plaintiff's orthopaedic surgeon that plaintiff's right shoulder range of motion remained "limited and/or restricted" even after corrective surgery. Specifically, ... restrictions were noted in both the forward flexion and abduction of the shoulder, as well as the internal and external rotation of the arm. Plaintiff's surgeon concluded that this significant limitation of the use and range of motion in the right shoulder would be permanent." [emphasis added] Charlie v. Guerrero, 2009 NY Slip. Op. 2302, 1-2 (1st Dept. Mar. 26, 2009).

Likewise, another case on point, decided just last month, involves a right shoulder injury where a plaintiff, as here, alleged that she "sustained a right rotator cuff tear and was a candidate for arthroscopy, and [submitted] an affirmed medical report of her treating physician quantifying loss of range of motion of the right shoulder." Even though "the defendants, in reply, claimed that the right shoulder injury was a preexisting condition, based on a reference in the plaintiff's medical records that she suffered a right shoulder strain in January 2003" the First Department held as follows: "the Supreme Court erred in determining that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the plaintiff on the ground that she did not sustain a serious injury within the meaning [*18]of Insurance Law § 5102(d). Further, it is clear from the record that there are triable issues of fact with respect to whether the injury to the plaintiff's right shoulder constituted a serious injury attributable to the accident." Kittner v. Allen, 2009 NY Slip. Op. 1956, 2 (2d Dept. Mar. 17, 2009).

In another case involving "rotator cuff tendonitis and bursitis of the right shoulder", plaintiff was found to have "presented sufficient, objective medical evidence that he suffered a serious injury as a result of the accident, [and that] the jury's verdict with respect to him should not be disturbed", by the testimony of plaintiff's orthopedic surgeon that plaintiff: "suffered from medial epicondylitis with right ulnar neuropathy and partial motion loss of the right elbow, rotator cuff tendonitis and bursitis of the right shoulder, as well as cervical syndrome, [and plaintiff] Mark Skellham underwent surgery on his elbow in July 1996 and arthroscopic surgery on his right shoulder in May 1998, which the orthopedic surgeon testified resulted in significant surgical scarring to his right arm ... in addition to his subjective complaints of pain, reduced strength and loss of function." Skellham v. Hendricks, 270 AD2d 619, 620 (3d Dept. 2000). "An expert's opinion that, as a result of the accident, a plaintiff sustained "tendinosis of the right shoulder", (as well as other injuries), was sufficient to raise an issue of fact as to whether a plaintiff sustained a "serious injury". Engles v. Claude, 39 AD3d 357 (1st Dept. 2007).

Accordingly, this Court having herein determined that Defendant CACERESDEPALLARES negligently caused the accident, there remains to be determined at trial whether Plaintiffs LEWIS and Plaintiff NATHANIEL, respectively, sustained "serious injuries" as a result of the accident, and the amount of damages that may be payable by CACERESDEPALLARES.

This constitutes the decision and order of this Court.

Dated: April 7, 2009

_____________________________

George D. Salerno, JSC Footnotes

Footnote 1: (MULLAN EBT, Jan. 10, 2007, p. 18).

Footnote 2: After the accident, LEWIS also saw that MULLEN was "bleeding profusely" and disoriented. (LEWIS EBT, p. 44).

Footnote 3: VTL § 1129 provides that: "the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

Footnote 4: It is also noted that CACERESDEPALLARES' Taurus was less than four years old, and had only about 31,000 miles on it. (CACERESDEPALLARES EBT, Feb. 2, 2007, p. 13-46, 47-48, 54-56. (CACERESDEPALLARES EBT, dated April 20, 2005, p. 16-21).

Footnote 5: (See NATHANIEL's Aff, dated Sept. 28, 2007, p. 1).

Footnote 6: It is also noted that Defendant CACERESDEPALLARES' Counterclaim against MULLEN was already dismissed in the case of Mullen v. CACERESDEPALLARES, Index No.: 17251/2004, by Order, dated March 3, 2006, by the Hon. George D. Salerno.

Footnote 7: (See Dr. Singh's Report, dated Dec. 27, 2006, p. 2-3).

Footnote 8: See Lesser v. Smart Cab Corp., 283 AD2d 273, 274 (1st Dept. 2001).

Footnote 9: (Dr. Elfiky's Aff, dated Oct. 11, 2007).

Footnote 10: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 2).

Footnote 11: (See Plaintiff LEWIS' Bill of Particulars, p. 4).

Footnote 12: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 3-4).

Footnote 13: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 6).

Footnote 14: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 6. See ROM report, Plaintiff LEWIS' Exhibit "F").

Footnote 15: (See EMG/NCV reports, Plaintiff LEWIS' Exhibit "F").

Footnote 16: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 3).

Footnote 17: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 7, 11. See Dr. Hausknecht's affirmed NCV/EMG report dated June 8, 2005, with certified medical records from "Complete Care", at Plaintiff' LEWIS' Exhibit "D").

Footnote 18: (Dr. Elfiky's Aff, dated Oct. 11, 2007).

Footnote 19: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 7. Plaintiff LEWIS Aff, dated Sept. 14, 2007, p. 2, 4).

Footnote 20: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 10).

Footnote 21: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 9).

Footnote 22: [emphasis in original]. (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 9-11).

Footnote 23: (Dr. Elfiky's Aff, dated Oct. 11, 2007, p. 12).

Footnote 24: (See Dr. Epstein's Dec. 28, 2006 report, p. 2).

Footnote 25: (See Dr. Singh's Dec. 20, 2006 report, p. 3).

Footnote 26: (See Dr. Rose's Aug. 2, 2007 Aff, p. 2).

Footnote 27: (See Dr. Epstein's Dec. 28, 2006 report, p. 5).

Footnote 28: (See Plaintiff's Affidavit, dated Sept. 28, 2007, p.2).

Footnote 29: (See Dr. Rose's Aug. 2, 2007 Aff, p. 3). NATHANIEL's date of birth was December 27, 1967.

Footnote 30: "Although unsworn, plaintiff's radiologist's reports were properly considered, because they were reviewed by defendant's expert in reaching his conclusion." Ayala v. Douglas, 57 AD3d 266 (1st Dept. 2008).

Footnote 31: (See Dr. Rose's Aug. 2, 2007 Aff, p. 2).

Footnote 32: (See Dr. Rose's Aug. 2, 2007 Aff, p. 2).

Footnote 33: (See Dr. Rose's Aug. 2, 2007Aff, p. 2).

Footnote 34: (See Dr. Rose's Aug. 2, 2007Aff, p. 3).

Footnote 35: (See Dr. Rose's Aug. 2, 2007Aff, p. 3).