Behrman v Geratowski

[*1] Behrman v Geratowski 2009 NY Slip Op 51110(U) [23 Misc 3d 1135(A)] Decided on May 11, 2009 Supreme Court, New York County Wooten, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2009
Supreme Court, New York County

Eugene N. Behrman, Plaintiff,

against

Pawel Geratowski and GALLANT & WEIN CORPORATION, Defendants.



109553/06



ATTORNEY FOR THE PLAINTIFF:

Firm: Ewal & Ewal

Address: 946 Park Avenue

Huntington, New York 11743

ATTORNEY FOR THE DEFENDANTS:

Firm: Hammill, O'brien, Croutier,

Address: Dempsey & Pender P.C.

6851 Jericho Tpke

Syosset, New York 11791

Paul Wooten, J.

On December 10, 2004, near the intersection of 47th Avenue and 11th Street, Queens County, plaintiff was involved in a collision with a vehicle owned by defendant Gallant & Wein Corporation and operated by defendant Geratowski. Plaintiff was taken to Huntington Hospital, immediately following the collision. Plaintiff received a pacemaker implant eight days prior to the subject accident, that prevented MRI tests treatment at the hospital. Plaintiff commenced this action to recover damages for alleged personal injuries suffered as a result of the subject accident. The parties have completed discovery and a note of issue was filed. Defendants now move pursuant to CPLR § 3212, for summary judgment, on the threshold issue of "serious injury" as defined by Insurance Law § 5102 (d). Plaintiff cross-moves on the issue of liability.

SERIOUS INJURY THRESHOLD

Pursuant to the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 (now Insurance Law § 5101, et seq. - the "No Fault" statute), a party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the categories of "serious injury" as set forth in Insurance Law § 5102 (d) (Marquez v New York City Tr. Auth., 686 NYS2d 18 {259 AD2d 261} [1 Dept 1999]; DiLeo v Blumberg, 672 NYS2d 319 {250 AD2d 364} [1 Dept 1998]). [*2]

Insurance Law § 5102 (d) defines "serious injury" as:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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 on-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 that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

It is now disputable which of the nine categories of serious physical injuries discussed by Insurance Law 5102 (d) are not applicable herein. The plaintiff's Summons and Complaint and Bill of Particulars does not specify which sections of the statute apply, thus, leaving the Court to search the record and make a determination. Accordingly, plaintiff makes no allegations of death, dismemberment, significant disfigurement, fracture, a loss of a fetus or a 90/180-day claim. Therefore, the court must determine if the plaintiff's injuries constitute either: (1) permanent loss of use of a body organ, member, function or system; (2) a permanent consequential limitation of use of a body function or system; or (3) a significant limitation of use of a body function or system.

Serious injury is a threshold issue, and thus, a necessary element of plaintiff's prima facie case (Licari v Elliott, 57 NY2d 230 [1982]; Toure v Harrison, 775 NYS2d 282 {6 AD3d 270} [1 Dept 2004]; Insurance Law § 5104 [a]). This is in accord with the purpose of the "No-Fault" law, which was to " weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]; Licari v Elliott, 57 NY2d 234 [1982]; Rubensccastro v Alfaro, 815 NYS2d 514 {29 AD3d 436} [1 Dept 2006]).

In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 707 NYS2d 233 {268 AD2d 79} [2 Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).

It is well settled that positive MRI results may constitute a serious injury within the meaning of Insurance Law §5102(d) (see Pommels v Perez, 797 NYS2d 380 {4 NY3d 566} [2005]; Nagbe v Mimigreen Hacking Group, Inc., 802 NYS2d 416 {22 AD3d 326} [1 Dept. 2005]). Furthermore, a CT scan or MRI may constitute objective evidence to support subjective complaints (see Arjona v Calcano, 776 NYS2d 49 {7 AD3d 279} [1 Dept 2004]; Lesser v Smart Cab Corp., 724 NYS2d 49 {282 AD2d 406} [1 Dept 2001]). The plaintiff's medical submissions must show when the tests were performed, the objective nature of the tests, what the normal range of motion should be and whether the plaintiff' s limitations were significant (see Milazzo v Gesner, 822 NYS2d 49 {33 AD3d 317} [1 Dept 2006]; Vasquez v Reluzco, 814 NYS2d [1 Dept 2006]).

With respect to the categories of significant limitation of use of a body function or [*3]system and permanent consequential limitation of use, " [w]hether a limitation of use or function is " significant'" or " consequential'" (i.e., important . . .) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part'" (Toure v Avis Rent A Car Sys., supra quoting Dufel v Green, supra ).

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the courts which may decide the issue on a motion for summary judgment (Perez v Rodriguez, 809 NYS2d 15 {25 AD3d 506} [1 Dept 2006]). On a motion for summary judgment based upon a failure to sustain a serious injury, the defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra ; see also Gaddy v Eyler, supra ; Pirrelli v Long Is. R.R., 641 NYS2d 240 {226 AD2d 166} [1 Dept 1996]).

A defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Fragale v Geiger, 733 NYS2d 901 {288 AD2d 431} [2 Dept 2001]; Pagano v Kingsbury, 587 NYS2d 692 {182 AD2d 268} [2 Dept 1992]). An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra ). In addition, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the parties' own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 813 NY2d 56 [1 Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be true under the penalties of perjury.

Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, supra ; Gaddy v Eyler, supra ; Perez v Rodriguez, supra ). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 668 NYS2d 167 {246 AD2d 418} [1 Dept 1998]). However, "where a defendant fails to meet his initial burden of establishing a prima facie case that the plaintiff did not sustain a serious injury, it is not necessary to consider whether the plaintiff's papers in opposition were sufficient to raise a triable issue of fact" (see Offman v Singh, supra ; Winegrad v New York Univ. Med Ctr., supra ).

DISCUSSION

The Defendants' Motion on the issue of "serious injury"

In support of the motion for summary judgment, defendants proffer, inter alia, the plaintiff's deposition testimony, the police accident report [FN1] and the affirmed medical reports of orthopedic surgeon, Dr. Alan Zimmerman and unsigned medical report of orthopedic surgeon Dr. Maurice Carter. Defendants also submit plaintiff's unaffirmed, [*4]uncertified hospital records from Huntington Hospital. A reference to plaintiff's unsworn or unaffirmed reports by in the moving papers or by defendants' medical experts, is sufficient to place such records properly before the court (Kearse v New York City Tr. Auth., 789 NYS2d 281 {16 AD3d 45} [2 Dept 2005]; Ayzen v Melendez, 749 NYS2d 445 {299 AD2d 381} [1 Dept 2002]).

Plaintiffs medical records include a copy of x rays from Huntington Hospital, taken on of the date of subject accident. As stated above, plaintiff was unable to submit to MRI testing due to his pacemaker implant (see plaintiff's exhibit b, affirmation by Dr. Dowling, p 4, para 3, line 7). However, on September 6, 2005, 10 months after the subject accident, plaintiff was able to submit to a CT scan.

Dr. Zimmerman, reviewed various plaintiffs records and examined plaintiff on March 31, 2005. Dr. Zimmerman observed significant limitations in the range of motion of plaintiff's cervical spine. However, he did not observe limitation in a range of motion test to plaintiff's shoulder (defendant's Motion, exhibit e, Dr. Zimmerman's report, p 2), and diagnosed plaintiff with "staus-post cervical, thoracic and sprain/strain". Dr. Zimmerman concluded that "there is a causal relationship between the complaints and injuries to the motor vehicle accident", yet "there are no disabilities related to the motor vehicle accident" and plaintiff " is capable of working full time at full capacity".

Dr. Carter examined plaintiff on January 22, 2008. According to his unsigned affirmation, Dr. Carter reviewed plaintiff's medical records related to his alleged injuries sustained as a result of the subject accident. Dr. Carter indicated that the medical report from Suffolk Magnetic Imaging regarding a CT scan of plaintiff's cervical spine, taken on September 6, 2005, indicated " small joint arthritis and disc bulges". Dr. Carter determined that such indication was "clearly a degenerative change in the spine compatible with [plaintiff's] age". However, Dr. Carter failed to mention whether he reviewed the actual CT scan, in order to come to his determination.

In addition, Dr. Carter determined plaintiff's loss in his cervical spine was "undoubtedly the result of arthritis of the spine". Dr. Carter concluded, "there is nothing in the material presented here or in the examination . . . which can, in objective terms . . . confirm his symptoms . . .I agree with the previous independent medical examiner". However, Dr. Carter failed to submit any acceptable evidence of objective tests taken to determine plaintiff's range of motion in his cervical spine. Dr. Carter's range of motion test fails to compare plaintiff's limitation to normal use. "In order to prove the extent or degree of physical limitation, an expert may designate a numeric percentage of a plaintiff's loss of range of motion or may make a qualitative assessment of plaintiff's condition, provided that the latter evaluation has an objective basis and compares the plaintiff's limitations to the normal use of the affected body system or function" (Shinn v. Catanzaro, 767 NY2d 88 [1 Dept 2003]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]; Dufel v Green, 84 NY2d 795, 798 [1995]).

As stated above, Dr. Carter's unaffirmed medical report is inadmissible (Grasso v. Angerami, supra ; Offman v Singh, supra , Pagano v. Kinsbury, supra , CPLR § 2106) and in the absence of evidence to establish an objective test in his examination conducted by him, his conclusions are insufficient.

Nonetheless, Dr. Zimmerman's medical report, concluding plaintiff's cervical spine limitation is a "sprain" and not permanent or a disability is sufficient to establish [*5]that plaintiff did not suffer a serious injury pursuant to Insurance Law § 5102 (d). Based on the foregoing, defendants have submitted evidence in a legally admissible form to meet their prima facie burden, entitling them to summary judgment and a finding that plaintiff has not sustained a "serious injury" within the meaning of Insurance Law § 5102 [d] (see, Gaddy v Eyler, supra ; Lowe v Bennett, 511 NYS2d 603 {122 AD2d 728} [1 Dept 1986], Affd, 69 NY2d 700 [1 Dept 1986]). Thus, the burden shifts to plaintiff to produce evidentiary proof in admissible form in order to establish the existence of a serious injury (see Taynisha Baez v Imamally Rahamatali,817 NYS2d 204 {6 NY3d 868} [2006]; Franchini v Palmieri, 775 NYS2d 232 {1 NY3d 536} [2003]; Gaddy v Eyler, supra ; Shinn v Catanzaro, 767 NYS2d 88 {1 AD3d 195} [1 Dept 2003]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Forrest v Jewish Guild for the Blind, 765 NYS2d 326 {309 AD2d 546} [1 Dept 2003]).

In opposition plaintiff submits, inter alia, his affidavit and the affirmed medical reports of the following medical experts: Dr. Thomas Dowling, an orthopedist, Dr. Joseph Sanelli, a pain management specialist; Dr. Phillip Fyman, a radiologist, Dr. Alvand Hassankhani, a neuroradiologist, Dr. Richard Weiss, a physician; and Dr. Mindy S. Pfeffer, a radiologist. Each physician has annexed and incorporated their medical records to their affirmation. Plaintiff also submits the affidavit and records of Greg Rahn, a physical therapist and the director/owner of Kings Park Physical Therapy and his annexed medical and treatment records.

According to the medical records from Huntington Hospital, annexed to defendants motion, there were "no problems" were detected with plaintiff's pacemaker. However, Dr. Dowling asserts that the pacemaker prevented certain MRI tests at the hospital and thereafter. It was not until September 6, 2005 (nine months after the subject accident) that CT scan were recommended. (See plaintiff's affirmation in opposition, exhibit b, Dr. Dowling's Affirmation, p 4, paragraph 3.)

Dr. Hassankhani, a neuroradiologist at Suffolk Magnetic Resonance Imaging, P.C. reviewed the CT Scans of plaintiff's cervical spine, dated September 6, 2005, and March 31, 2008, and lumbar spine, dated March 4, 2008 and issued the CT scan report. Dr. Hassankhani, also annexes and incorporates plaintiff's CT Scans report to his affirmation, thus the CT scans are admissible. Dr. Hassankhani opines that such tests revealed injuries to plaintiff's cervical and lumbar spine.

Dr. Pfeffer, examined plaintiff on April 17, 2008. Dr. Pfeffer lists her observations as to plaintiff's medical condition. In addition to his affirmation, Greg Rahn, a physical therapist and the director/owner of Kings Park Physical Therapy, has annexed various medical records from Kings Park Physical Therapy.

Dr. Dowling, plaintiff's treating physician, conducted his initial examination of plaintiff on January 7, 2005, within 30 days after the subject accident. Dr. Dowling conducted follow- up examinations of plaintiff on March 21, 2005, May 23, 2005, July 27, 2005, November 9, 2005, December 23, 2009 and recent examinations on March 20, 2008 and May 30, 2008.

Dr. Dowling asserts that his November 9, 2005 examination, which includes a [*6]cervical range of motion test [FN2], in conjunction with the September 6, 2005 CT scan, establishes a timely contemporaneous examination supporting permanency and limitations for purposes of serious injury" pursuant to Insurance Law § 5102 (d)" (See Pommel v Perez, supra , Thompson v Abbasi, 15 AD3d 95, 100-101 [1st Dept 2005][FN3]).

The affirmations and annexed medical records of Dr. Sanelli, Dr. Weiss , Dr. Fyman, Dr. Pfeffer and Dr. Hassankhani and the affidavit by Dr. Greg Rahn are sufficient to establish plaintiff's various followup treatments, therapy and injections for the various pain and injuries plaintiff sustained as a result of the subject accident.

In addition to the evidence of subsequent treatment by various physicians, Dr. Dowling also proffers, the MRI's of plaintiff's cervical spine dated March 31, 2008, and lumbar spine, dated March 4, 2008. The a cervical range of motion test, conducted by Dr. Dowling in his May 30, 2008 examination (p 7, para. 2), establishes a recent examination supporting permanency and limitations for purposes of serious injury" pursuant to Insurance Law § 5102 (d)" (See Pommel v Perez, supra )

As to Dr. Dowling's, explanation in footnote 2 of his affirmation (p 8, para. 1, line 4). He explains that the May 30, 2008medical report's conclusion which indicated that the cervical spine range of motion examination tests were "within normal limits", was a misstatement (See plaintiff's affirmation in opposition, exhibit b, Dr. Dowling July 28, 2008, attached Eugene Behrman 2). Instead, Dr. Dowling asserts that the range of motion test results supporting the conclusion in the report, are accurate and valid and [*7]indicate significant limitation.

However, the May 30, 2008 medical report, range of motion test as reported is invalid, because the results reported fails to indicate the normal range for each measurement. (see Milazzo v Gesner, supra , Vasquez v Reluzco, supra ). The Court finds this reporting inconsistency, now labeled a mistake, is not dispositive of the motion. This issue is not the primary basis for Dr. Dowling's conclusions and it is a credibility issue for trial.

In deciding a summary judgment motion, the court must bear in mind that issue finding rather than issue determination is the key to summary judgment. See Sillman v Twentieth Century Fox Film Corporation, 3 NY2d 395, 165 NYS2d 489 (1957). Furthermore, since summary judgment is a drastic remedy which deprives a litigant of her day in court, the evidence adduced on the motion must be liberally construed in the light most favorable to the opposing party. See Kesselman v Lever House Restaurant, 816 NYS2d 13, 29 AD3d 302, [1 Dept 2006]; Goldman v Metropolitan Life insurance Company, 788 NYS2d 25, 13 AD3d 289, [1 Dept 2004].

Dr. Dowling, concludes that "based upon the objective testing (including the CT scan) and clinical examination", plaintiff sustained "right shoulder tendinitis/impingement syndrome cervical and lumbar strain with underlying degenerative changes with cervicalgia and spinal spinosis at multiple levels". Dr. Dowling also concludes, "[b]ased upon my treatment of Mr. Behman, my clinical findings upon examination... and CT testing...he sustained serious permanent disabling injuries to his right shoulder and neck and back as a result of the December 10, 2004 accident" (See plaintiff's affirmation in opposition, exhibit b, Dr. Dowling July 28, 2008 Affirmation, p 9, paragraph 2).

Plaintiff's medical evidence indicates a gap in treatment, between the July 2005 examination and the March 2008 examination. "While a cessation of treatment is not dispositivethe law surely does not require a record of needless treatment in order to survive summary judgmenta plaintiff who terminates therapeutic measures following the accident, while claiming serious injury,' must offer some reasonable explanation for having done so" (Pommells v Perez, 4 NY3d 566 [2005]). In this instance plaintiff has offered a sufficient explanation. Dr. Dowling states, in his affirmation, that "after having completed 2 courses of physical therapy and in the midst of a third course of therapy" plaintiff's "condition was essentially static" and further therapy would not substantially change his condition.

Finally, plaintiff's 90/180-day claim, if any, is insufficient. Plaintiff's bill of particulars does not indicate a claim for 90/180 and the claim is not specified in the complaint. However, plaintiff tangentially raises the claim in his affirmation. When construing the statutory definition of a 90/180-day claim, the words substantially all' should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment." Thompson v Abbasi, 15 AD3d 95, 100-101 [1st Dept 2005]. Plaintiff testified in his deposition, (p 54-55) that he was not confined to his home or bed and his only limitation was "he can't lift anything" as a result of his injuries. In addition, plaintiff's medical evidence does not demonstrate that plaintiff suffered an injury which limited "substantially all" his daily [*8]activities for 90 of the 180 days immediately after the accident. (See Morris v Ilay Cab Corp., - NYS2d , [1 Dept. 2009], 2009 NY Slip Op. 02668, 2009 WL 910847 and Insurance Law § 5102 [d] [5] ).

With the exception of plaintiff's claim in the category of 90/180, plaintiff's evidence is sufficient to raise a triable issue of material fact as to whether or not plaintiff sustained a "serious injury as a result of the subject accident."

Plaintiff's Cross Motion on Liability

Plaintiff argues that he had the right of way at a stoplight in the intersection and as he crossed the intersection, he observed the defendants vehicle approaching at a high rate of speed. Plaintiff claims that the defendants vehicle ran through a red light causing the subject accident. In support of plaintiff's motion for summary judgment on liability he submits, inter alia, his affidavit, and the deposition testimony of defendant Geratowski.

The Court has held that uncertified police reports are inadmissible to indicate a party's liability, because the police officer who prepared the report was not an eyewitness to the accident (see Ann Connors v Duck's Cesspoool Services, Ltd., 144 AD2d 329, [1 Dept 1988]; Figueroa v Luna,721 NY2d 635 [1 Dept 2001]; Murray v Donlan, 433 NY2d 184 [2 Dept 1980]). However, the report in this instance does have some probative value because it falls into a hearsay exception (Kelly v Wasserman, 5 NY2d 425, 429 [1959]; Murray v Donlan, supra ). The report contains an admission by the defendant Geratowski, which states that "he did pass through the red light causing collision". (See plaintiff's cross motion, exhibit d, behind defendant deposition.) In addition, defendant testified, at his deposition, that the statement from the police report was accurate and that he did not see plaintiff's vehicle before the impact.

In opposition, defendants submit the testimony of defendant Geratowski. Defendants argue that plaintiff stopped in the middle of the intersection and plaintiff had ample time to avoid the accident.

VTL § 1110 provides:

Every person shall obey the instructions of any official traffic-control device applicable to him placed in accordance with the provisions of this chapter, unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this title.

In conclusion, plaintiff's evidence and defendant Geratowski's testimony establishes that plaintiff had the right of way in the intersection at the time of the subject accident. Defendant's evidence fails to raise a triable issue of material fact on the issue of liability.

For these reasons and upon the foregoing papers, it is,

ORDERED that the defendant's motion for summary judgment on the issue of serious injury is denied, except as to plaintiff's 90/180-day claim, if any, is dismissed; and it is further,

ORDERED that the plaintiff's cross-motion for summary judgment on the issue of liability is granted; and it is further,

ORDERED that all parties are directed to appear at a pre-trial conference on [*9]Thursday, May 21, 2009, in Part 22, 80 Centre Street, New York, New York, Room 136.

This constitutes the Decision and Order of the Court.

Dated:

Paul WootenJ.S.C. Footnotes

Footnote 1: The police accident report was illegible.

Footnote 2:These results do indicate the normal standard range of motion as the second number in each report and therefore the test is valid. (See Shinn v. Catanzaro, supra ; see Toure v Avis Rent A Car Sys., supra ; Dufel v Green, supra ).

Footnote 3: The Appeal Courts have established a general two year time limit, under certain circumstances, as to what is reasonable time for a plaintiff's to establish by proper medical evidence their qualitative assessment to indicate serious injury in order to meet the contemporaneous evidence causation requirement.

For example, In Guadalupe v. Blondie Limo, Inc., 43 AD3d 669; 841 NYS2d 525, [1 Dept 2007] the Court wrote;

"Despite the positive MRI report, there were no objective findings immediately following the accident to demonstrate any initial range-of-motion restrictions on plaintiff's cervical and lumbar spine, or any detailed explanation for their omission (Thompson, 15 AD3d at 98). The quantitative range-of-motion assessment plaintiff did submit was made more than two years (Emphasis added) after the accident by a physician who examined her only on that one occasion (Emphasis added),(see Atkinson v Oliver, 36 AD3d 552, 830 NYS2d 30 [2007])."

In Thompson v. Abbasi, 15 AD3d 95, at 98, 788 NYS2d 48 [1 Dept 2005], the First

Department also wrote,

"the key fact that this plaintiff waited over 2 1/2 years to uncover evidence of the limitations to his neck which he now claims meets the threshold. The proof gives us no way to determine that the July 2002 alleged limitation was occasioned by the November 1999 accident, as there is no proof of what plaintiff's post-accident limitations were, if any. By "post-accident" we mean limitations suffered within a reasonable time (Emphasis added)after the accident under all the relevant circumstances."

Also see Vaughan v Baez, 305 AD2d 101 [1 Dept 2003], the plaintiff cannot establish objective medical evidence to establish that there is a causal connection between plaintiff's condition and the accident, by physician, who was not the treating physician, saw the plaintiff only once (after the defendants motion for summary was commenced) and more than 2 years after the accident; compare Silva v Vizcarrondo, 31 AD3d 292 [1 Dept 2006] (plaintiff met "minimal standard" to substantiate her serious injury claim where her expert, who began treatment for her injuries shortly after the accident, and conducted six physical examinations within the period, made the quantified assessment 17 months after the accident).