Figueroa v Castillo

[*1] Figueroa v Castillo 2005 NY Slip Op 52342(U) [18 Misc 3d 1132(A)] Decided on December 19, 2005 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2005
Supreme Court, Bronx County

Elizabeth Figueroa, Plaintiff(s),

against

Jose Castillo and Milagros Torres, Defendant(s).



14653/03

Nelson S. Roman, J.

Defendant JOSE CASTILLO (Castillo), moves seeking an order granting him summary judgment over plaintiff and defendant MILAGROS TORRES (Torres). Castillo seeks summary judgment on the issue of liability asserting that it was in no way negligent with respect to the accident herein. Castillo further asserts that plaintiff's cause of action must be dismissed because, having failed to demonstrate the existence of a serious injury, the claim herein is barred by the Insurance Law. Torres cross-moves for summary judgment over plaintiff asserting that plaintiff has not sustained a serious injury. Torres opposes Castillo's motion for summary judgment on the issue of liability asserting that questions of fact preclude the same. Plaintiff opposes both the motion and cross-motion asserting that questions of fact preclude such relief.

For the reasons that follow hereinafter Castillo's motion is granted in its entirety and Torres' motion is also granted.

This is an action for personal injuries allegedly sustained by plaintiff on December 22, 2002. It is alleged that plaintiff was involved in a motor vehicle accident with vehicles owned and operated by the defendants. It is further alleged that the plaintiff suffered injuries, the most serious being: medial and lateral meniscus tear requiring surgery, post traumatic stress disorder, disc bulges at L3-S1 and at C4-C7. Plaintiff alleges that these injuries satisfy the mandates of the Insurance Law to the extent that they have caused her to suffer suffered a permanent loss of use of a body organ, member, function or system, a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature which prevented plaintiff from performing all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

In support of the motion for summary judgment, Castillo submits medical reports, [*2]medical records, and deposition transcripts.

Plaintiff was deposed, and testified, in pertinent part, as follows. On December 22, 2002, at about 8:30Pm, she was involved in an accident while a passenger within a vehicle driven by Torres. Prior to the accident Torres had been traveling down Guerlain Lane, a one way street, approaching Theriot Avenue, the intersecting street. It was dark outside and there were no street lights. When Torres approached the intersection of Gueralain and Theroit, she came to a stop at the stop sign. She remained stopped for about five seconds. During those five seconds, plaintiff looked to the left and right of the intersection and saw nothing. Torres moved the vehicle forward and into the intersection, plaintiff was looking straight ahead, and a collision occurred. While plaintiff did not see the other vehicle prior to impact, she states that it approached from her left striking the driver's side of Torre's vehicle, causing damage to the driver's side door. She did not see any headlights in use on the other vehicle, states that Torres was using her headlights, and describes the impact as heavy. Upon impact plaintiff's left knee contacted the dashboard of the vehicle and her head struck the windshield. Plaintiff felt some slight pain in her knee, neck and low back. She did not leave the scene by ambulance. A week after the accident, plaintiff sought treatment at a facility near Pelham Avenue. She received therapy at said facility for her knee, neck, and low back. She attended therapy three times a week for a few months. Thereafter, she began received treatment at another facility within the Grand Concourse Plaza. She treated at this facility for about a month, undergoing therapy and chiropractic care. On March 25, 2003, plaintiff underwent arthroscospic surgery to her left knee. Said surgery was performed by Dr. Diwan at Queens Medical. Between the accident and the surgery plaintiff was not confined to her home. Thereafter, she was confined to her home for two months but not confined to her bed. Since the accident plaintiff has trouble with prolonged sitting or standing. Plaintiff has difficulty traversing stairs. Since the accident she experiences intermittent knee, neck, and low back pain. Plaintiff was unemployed at the time of the accident and since that time became employed by Garrison's Security. After five months of employment she had to stop work. On November 2, 2002, plaintiff was involved in a prior motor vehicle accident where she received treatment for her left knee injury. She denied injury as a result of the prior accident and had no pain in her knee prior to the accident herein. As of 2004, plaintiff was still treating at Grand Concourse Plaza.

Castillo was deposed and testified, in pertinent part, as follows. At the time of this accident Castillo was traveling on Theriot Avenue approaching Guerlain Lane the intersecting street. It was dark outside and he had his headlights on, which engaged automatically when his vehicle was started. Prior to the accident he had been on Theriot, a one way street for one block. His greatest rate of speed was 25 miles per hour. He states that traffic traveling on Guerlain was controlled by a stop sign and traffic traveling on Theriot had the right of way. When he entered the intersection he was involved in a collision with plaintiff's vehicle. He had not seen the vehicle prior to the collision, although he was looking straight ahead. He described the collision as a medium one. Castillo doesn't recall what part of the other vehicle was involved in the accident, but does recall that the driver's side door of the other vehicle was damaged. The front right side of his vehicle was also damaged. [*3]

Torres was deposed and testified, in pertinent part, as follows. On December 22, 2002, she was involved in a motor vehicle collision at the intersection of Guerlain and Theriot Avenue. Prior to the accident, Torres was traveling on Guerlain approaching Theriot Avenue. She had been traveling on Guerlain for about five blocks prior to the collision, coming to a stop at each intersection for stop signs. She described the instant intersection as dark with an absence of street lighting. As she approached The intersection of Theriot and Guerlain, she came to as top at a stop sign for a split second. At that time she looked to her left and saw no traffic on Theriot. She entered the intersection and a split second later, she was involved in a collision with a car she had not seen. She described the collision as hard and fast. After the collision, she noticed that the other car's headlights were not on. Her car was impacted on the driver's side near the door. She stated that there were vehicles parked on both sides of Theriot, but none of them obstructed her view.

Castillo submits copies of plaintiff's own medical records. A report from NYC Medical and Neurodiagnostic, P.C. dated December 3, 2002 discusses an examination conducted of plaintiff subsequent to a motor vehicle accident on November 11, 2002. Plaintiff presented complaining of neck head and back pain radiating to her extremities. A medical examination revealed plaintiff had limited range of motion in both cervical and lumabr spine. Straight leg raising was positive bilaterally. Dimitri V. Kolesnik (Kolesnik), author of said report concludes that the injuries he diagnosed were causally to the motor vehicle accident of November 11, 2002. A report dated December 10, 2002, from Nicholas Gno (Gno), discusses an examination conducted of plaintiff subsequent to a motor vehicle accident on November 11, 2002. Plaintiff presented with complaints of headaches and dizziness. Plaintiff described an accident where she hurt her head, neck, back, and left knee. Plaintiff was examined and a limp was observed as well as limited range of motion in her neck. Castillo provides a follow up report, dated February 2, 2003, indicating that plaintiff had fallen on January 16, 2003, injuring her left knee. An MRI report provided by Castillo, indicates that plaintiff had sustained a tear of the medial meniscus. Said report is dated February 24, 2003.

Castillo submits a sworn report from J.Y. Margulies (Margulies), an orthopedic surgeon, who examined plaintiff on behalf of defendants on November 4, 2004. Plaintiff's knees were examined and full range of motion was noted bilaterally. No instability was noted, the knees were stable to varus and valgus stress. McMurray's test, Drawer Sign, Stress test, and Patellar compression tests, were all negative. Marguiles concludes that plaintiff had no functional disability, was in no need of diagnostic testing or durable equipment and could continue with activities of daily living.

Castillo submits a report from Solomon Miskin (Miskin), a psychiatrist and neurologist. At an examination conducted on October 28, 2004, plaintiff presented with complaints of insomnia and a fear of riding in cars. Plaintiff described being in a prior motor vehicle accident in November 2002, undergoing prior psychiatric treatment as a child, attending special education classes, and being diagnosed as learning disabled. A psychiatric examination was conducted. Speech was clear, affect was appropriate and comprehension was good. Memory was grossly intact for recall in all ranges. Plaintiff was able to recall what she had for breakfast and for [*4]dinner the previous night. Calculations were grossly unremarkable. Plaintiff was able to manage serial three subtraction. Miskin concludes that plaintiff has no psychiatric disability and can pursue employment and school without restriction.

In support of her cross-motion, Torres submits the same sworn medical affirmations submitted by Castillo. Additionally, she submits a sworn report from R.C. Krishna (Krishna). Krishna examined plaintiff on November 4, 2004 on behalf defendants. The cervical spine was examined and flexion and extension were 45 degrees. The thoracolumbar spine was examined and flexion was 90 degrees. Extension was 30 degrees. Krishna concludes that neurologically plaintiff's exam was normal. There is no indication of disability and there is no further need for testing or treatment.

In opposition to the motion plaintiff submits an affidavit from plaintiff, an affirmation from a doctor and a sworn report from a doctor.

Plaintiff's affidavit chronicles her injuries and the treatment she received and in essence simply reiterates what she testified to at her deposition. She states that she stopped treating because her insurance benefits were stopped.

Laxmidhar Diwan (Diwan), a medical doctor, provides an affirmation, dated August 10, 2005, wherein he states the following. He first saw plaintiff on March 17, 2003 due to knee injuries sustained in an accident on December 22, 2002. Diwan prescribed an MRI study to the left knee revealing meniscus tear. He recommended surgery and on March 25, 2003, performed an arthroscopy of the left knee to repair the medial and lateral meniscus. The knee injury, according to Diwan, was the result of the accident on December 22, 2004 and has left plaintiff with a permanent impairment, which has received maximum medical improvement.

Plaintiff provides a sworn report from Harvey Insler (Insler), an orthopedic surgeon, dated August 25, 2005. He states that plaintiff had been receiving treatment at his facility since July 21, 2004. She was seen at Insler's office on August 1, 2005 and was examined. Active range of motion in left knee was slow and her knee was tender. Left thigh measured 55cm and right thigh measured 59cm. Insler concludes that the plaintiff has injured her left knee as a consequence of her accident on December 22, 2002. The difference in thigh circumstance is objective evidence of her knee pain. Her condition is permanent.

Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 [*5]NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).

Motor Vehicle Accidents

in the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his vehicle is entitled to summary judgment. Cerda v. Parsley, 273 AD2d 339 (2nd Dept. 2000). In Cerda, the court, in discussing a rear end collision, found that the defendant established that she had not acted negligently with respect to operation of her vehicle. Id. Defendant proffered evidence that she had safely brought her vehicle to a complete stop prior to collision and that she had been propelled into the rear of another vehicle after a stop and after being hit in the rear by another vehicle. Id. The Court, after having no evidence that the defendant acted negligently or otherwise contributed to the accident, granted summary judgment in her favor. Id.

VTL §1142

Vehicle and Traffic Law §1142 reads, in pertinent part,

(a) Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop as required by section as required by section eleven hundred seventy-two and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.

Drivers have a common-law duty the duty to see what there is to be seen, Terrel v. Kissel, 116 AD2d 637 (2nd Dept. 1986); Le Claire v. Pratt, 270 AD2d 612 (3rd Dept. 2000); Weiser v. Dalbo, 184 AD2d 935 (3rd Dept. 1992), and the driver with the right of way, meaning the one not subject to a stop sign, is entitled to anticipate that the other driver will comply with its obligation to yield at a stop sign. Perez v. Brux Cab Corp., 251 AD2d 157 (1st Dept. 1998); Namisnak v. Martin, 244 AD2d 258 (1st Dept. 1997); Doxtader v. Janczuk, 294 AD2d 859 (4t Dept. 2002). A driver not subject to a stop sign has no duty to watch for an avoid a driver who might fail to stop or proceed with caution at a stop sign. Perez v. Brux Cab Corp., 251 AD2d 157 (1st Dept. 1998). A violation of VTL §1142 constitutes negligence as a matter of law. Cenovski v. Lee, 266 AD2d 424 (1st Dept. 1999); Weiser v. Dalbo , 184 AD2d 935 (3rd Dept. 1992). Similarly, failure to see, what under the circumstances there is to be there is to be seen, constitutes negligence as a matter of law. Breslin v. Rudden, 191 AD2d 471 (2nd Dept. 2002); Smalley v. McCarthy 254 AD2d 478 (2nd Dept. 1998).

A party establishes prima facie entitlement to summary judgment when he demonstrates a violation of VTL §1142, by establishing that the party subject to a stop sign enters the intersection, failing to yield the right of way to the other vehicle not subject to a stop sign. In essence a violation of §1142, creates a rebuttable presumption of negligence. Murchinson v. [*6]Incognoli, 5 AD3d 271 (1st Dept. 2004). Paljevic v. Smith, 20 AD3d 517 (2nd Dept. 2005). In order to rebut the presumption of negligence, created when it is established that a party has violated VTL §1142, a party needs to present evidence that the other driver was negligent. Breslin v. Rudden, 291 AD2d 471 (2nd Dept. 2002). In Breslin, the court granted summary judgment in favor of defendant. Breslin v. Rudden, 291 AD2d 471 (2nd Dept. 2002). The court found that defendant had established entitlement to summary judgment when he presented evidence that plaintiff brought his vehicle to stop at the stop sign but nevertheless proceeded through the intersection directly into the path of defendant's vehicle. Id. The court concluded that by failing to establish the defendant was negligent in the operation of his vehicle, plaintiff had failed to raise a triable issue of fact as to defendant's negligence. Id. Lastly, the happening of an accident, specifically a party's inability to clear an intersection without causing a collision, is compelling evidence of the hazard posed by the vehicle with the right of way as it approaches an intersection. Le Claire v. Pratt, 270 AD2d 612 (3rd Dept. 2000).

Serious Injury

NY Insurance Law §5104(a) states that

notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state there shall be no right of recovery for non-economic loss, except in the case of serious injury . . .

NY Insurance Law §5104(a). NY Insurance Law §5102(d), defines serious injury as

A personal injury which results in death; dismemberment; significant disfigurement, a fracture, loss of 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 non-permanent nature which prevents the injured person from performing all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment

NY Insurance Law §5102(d). NY Insurance Law §5102(c) defines non economic loss as pain and suffering and §5102(j) defines covered person as [*7]

Any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security provide***

NY Insurance Law §5102(j). The issue of whether a person has established a prima facie case of a serious injury is within the Court's purview and can be decided as a matter of law. Licari v. Elliot, 57 NY2d 230 (1982). The mandates set forth in the insurance law have been echoed and discussed by this Court for years. Clearly, the purpose of this section of the insurance law is to severely limit the number of personal injury law suits brought stemming from motor vehicle accidents. Id. In particular, the legislature was concerned with curtailing the number of law suits involving minor injuries. Id. In Licari, the Court stated that

Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no fault system.

Id. at 235. Moreover, the Court stated that

***plaintiffs in automobile cases no longer have an unfettered right to sue for injuries sustained. Thus, to the extent that the legislature has abrogated a cause of action, the issue is one for the court, in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute.

Id. at 237. Hence, while plaintiffs who have suffered a serious injury can bring a lawsuit to recover non-economic, pain and suffering damages, the legislature intended that the Court first determine whether or not a plaintiff has indeed suffered a serious injury in the first instance. Id. If after a review of the of the evidence, after a motion for summary judgment or after a trial, it is determined that plaintiff has not suffered a serious injury, then "***plaintiff has no claim to assert and there is nothing for a jury to decide." Id. at 238. The insurance law and the legislative intent underlying it clearly favors summary judgment as a vehicle for weeding out those cases which should not be tried.

The majority of serious injury cases where the Court is called upon to decide summary judgment relate to one or more of the last serious injury categories listed within §5102(d) of the insurance law. These categories are (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; (3) [*8]significant limitation of use of a body function or system; (4) or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. Thus, the discussion that follows hereinafter shall focus exclusively on these categories of the insurance law.

When a defendant seeks summary judgment by alleging that plaintiff's injuries are not serious under the insurance law and as such plaintiff does not meet the threshold required to maintain a lawsuit, it is incumbent on the defendant to first establish that plaintiff's injuries are not serious. Franchini v. Plameri, 1 NY3d 536 (2003); Brown v. Achy, 9 AD3d 30 (1st Dept. 2004). If defendant meets this burden, defendant has established prima facie entitlement to summary judgment. Id. It then becomes incumbent on the plaintiff to submit proof, in admissible form, of the existence of triable issues of fact. Id; Franchini v. Plameri, 1 NY3d 536 (2003); Gaddy v. Eyler, 79 NY2d 955 (1992); Shinn v. Catanzaro, 1 AD3d 195 (1st Dept. 2003); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003). Specifically, plaintiff must demonstrate that there is a serious injury under the insurance law and consequently, summary judgment is not warranted and the action mandates resolution by trial. Id.

A defendant can satisfy the requisite burden of prima facie entitlement to summary judgment in several ways. As a matter of course, a defendant's medical submissions must be based on objective evidence. Junco v. Ranzi, 288 AD2d 440 (2nd Dept. 2001); Papadonikolakis v. First Fid. Leasing Group, 273 AD2d 299 (2nd Dept. 2001); A defendant can submit an affidavit from a doctor who examined the plaintiff and opines that the plaintiff had a normal medical examination. Gaddy v. Eyler, 79 NY2d 955 (1992); Brown v. Achy, 9 AD3d 30 (1st Dept. 2004)(Defendant's doctor concluded that despite MRI reports indicating a herniation, no other objective findings indicated a disc herniation); Shinn v. Catanzaro, 1 AD3d 195 (1st Dept. 2003) (Defendant's doctor asserted that after an examination of the plaintiff. No objective findings demonstrated the existence of an injury as claimed); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003); Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003). A defendant can submit an affirmation from an attorney indicating that plaintiff's own medical records and the reports of plaintiff's own doctors do not indicate that plaintiff suffered a serious injury and that plaintiff's injuries were not, in any event, causally related to the accident alleged. Franchini v. Plameri, 1 NY3d 536 (2003). A defendant can submit an attorney affirmation accompanied by other documentary evidence and exhibits, not necessarily medical, which support defendant's contention that plaintiff did not suffer a serious injury. Lowe v. Bennett, 122 AD2d 728 (1st Dept. 1986), Aff'g, 69 NY2d 700 (1986). A defendant can point to plaintiff's own deposition testimony to establish that, by plaintiff's own account, plaintiff's injuries were not serious within the meaning of the statute and the case law. Arjona v. Calcano, 7 AD3d 279 (1st Dept. 2004). [*9]

Defendant's medical evidence must be in the form sworn medical affirmations or affidavits if it comes from defendant's own doctors. Shinn v. Catanzaro, 1 AD3d 195 (1st Dept. 2003); Rodriguez v. Goldstein, 182 AD2d 396 (1st Dept. 1992); Pagano v. Kingsbury, 182 AD2d 268 (2nd Dept. 1992). However, defendant can establish the lack of serious injury by using plaintiff's own unsworn medical records, and otherwise inadmissible medical reports from plaintiff's own doctors. Newton v. Drayton, 305 AD2d 303 (1st Dept. 2003); Pagano v. Kingsbury, 182 AD2d 268 (2nd Dept. 1992). Defendants can also use plaintiff's own sworn testimony to establish the absence of a serious injury. Arjona v. Calcano, 7 AD3d 279 (1st Dept. 2004); Nelson v. Distant, 308 AD2d 338 (1st Dept. 2003)(Defendant relied on plaintiff's bill of particulars to establish the absence of a serious injury).

Plaintiff's medical evidence, when proffered to establish the existence of a serious injury, must always be in admissible form. Grasso v. Angerami, 79 NY2d 813 (1991); Shinn v. Catanzaro, 1 AD3d 195 (1st Dept. 2003); Charlton v. Almaraz, 278 AD2d 145 (1st Dept. 2000); Lowe v. Bennett, 122 AD2d 728 (1st Dept. 1986), Aff'g, 69 NY2d 700 (1986); Zoldas v. Louise Cab Corporation, 108 AD2d 378 (1st Dept. 1985); Mobley v. Riportella, 241 AD2d 443 (2nd Dept. 1997); Hagan v. Thompson, 234 AD2d 420 (2nd Dept. 1996). Unlike defendants who can rely on plaintiff's own unsworn medical records and reports, plaintiff's medical evidence must be presented by way of sworn affirmations or affidavits. Any submissions from a chiropractor must be in the form of sworn and duly notified affidavit because a chiropractor is not a medical doctor who can affirm pursuant to CPLR §2106. Shinn v. Catanzaro, 1 AD3d 195 (1st Dept. 2003); Gill v. O.N.S. Trucking, 239 AD2d 463 (2nd Dept. 1997). Plaintiffs can use unsworn diagnostic reports to establish the existence of a serious injury provided that defendants utilized the same unsworn reports to conclude the lack of a serious injury. Ayzen v. Melendez, 299 AD2d 381 (2nd Dept 2002).

Once defendant meets the burden of prima facie entitlement to summary judgment, by establishing that plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. Plaintiff must of course establish that the injuries alleged were the result of the accident claimed and that the limitations alleged are the result of those injuries Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002); Zoldas v. Louise Cab Corporation, 108 AD2d 378 (1st Dept. 1985); Andrews v. Slimbaugh, 238 AD2d 866 (2nd Dept. 1997). Medical evidence of an injury is required to establish a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Generally, such medical proof should be contemporaneous with the accident, showing what restrictions, if any, plaintiff was afflicted with. Nemchyonok v. Ying, 2 AD3d 421 (2nd Dept. 2003). Subjective proof such as complaints of pain, or limitations, without more, are insufficient to defeat summary judgment and do not establish the existence of a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002); Scheer v. Koubeck, 70 NY2d 678 (1987); Noble v. Ackerman, 252 AD2d 392 (1st [*10]Dept. 1998); Eisen v. Walter & Samuels, Inc., 215 AD2d 149 (1st Dept. 1995)). When plaintiff relies on subjective complaints of pain to establish a serious injury, he must do more than merely recount how much pain he feels. Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998). Plaintiff must specify how the pain limits the use of the body part, function, or organ or how the pain limits his routine daily activities. Id. In order to prove the degree, severity or extent of a physical limitation, plaintiff must submit medical proof of his limitations. Id. Plaintiff can submit medical evidence indicating the numeric percentage of plaintiff's loss of range of motion. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Limitations can also be proven by submitting medical evidence of a medical qualitative assessment of plaintiff's condition, provided that the assessment "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." Id. at 350. A doctor's conclusory allegations based solely on subjective findings cannot establish a prima facie case of serious injury. Lowe v. Bennett, 122 AD2d 728 (1st Dept. 1986); Mobley v. Riportella, 241 AD2d 443 (2nd Dept. 1997); Hewan v. Callozzo, 223 AD2d 425 (1st Dept. 1996). A medical expert's opinion establishing a serious and permanent injury which is based solely on plaintiff's subjective complaints will not be credited and will not preclude summary judgment in favor of defendant. Zoldas v. Louise Cab Corporation, 108 AD2d 378 (1985). Whether an injury is permanent is usually a medical question requiring expert testimony. Dufel v, Green, 84 NY2d 796 (1995). The permanency of injury is not established merely because an expert repeatedly uses the word "permanent" in an affidavit. Lopez v. Senatore, 65 NY2d 1017 (1985). An objective basis for the medical conclusion of the permanency is required. Conclusory allegations as to permanency in a doctor's affidavit are insufficient as a matter of law to establish serious injury. Id. Thus, in order to be sufficient to establish a prima facie case of serious physical injury the medical affirmation or affidavit proffered must contain medical findings, which are based on the physician's own examination, tests and observations and review of the record rather than manifesting only the plaintiff's subjective complaints. To raise an issue of fact as to the existence of a serious injury the medical evidence presented must include a recent examination of the plaintiff. Bent v. Jackson, 15 AD2d 46 788 (1st Dept. 2005); Grossman v. Wright, 268 AD2d 79 (2nd Dept. 2000).

Medical reports where the doctor relies on inadmissible medical evidence to conclude the existence of a serious injury are insufficient for purposes of establishing the existence of a serious injury. Puerto v. Omholt, 17 AD3d 650 (2nd Dept. 2005); Friedman v. U-Haul Truck Rental, 216 AD2d 266 (2nd Dept. 1995).. This is because just like plaintiff, who cannot rely on unsworn medical evidence to establish a serious injury, neither can his doctors. Friedman v. U-Haul Truck Rental, 216 AD2d 266 (2nd Dept. 1995). In Friedman, the Court held that plaintiff's examining doctor could not rely on unsworn MRI reports to establish the existence of a serious injury. Id. In Puerto, the Court held that plaintiff's chiropractor could not rely on unsworn medical records and reports in arriving at a diagnosis and conclusion. Puerto v. Omholt, 17 AD3d 650 (2nd Dept. 2005). [*11]

A diagnosis of a herniated disc, without more, is not evidence of a serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002); Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998). Consequently, If plaintiff claims to have suffered a herniated disc or bulging disc, he must, in addition to submitting medical proof of the injury, submit objective evidence as to the duration, extent or degree of the alleged physical limitations attributed to the disc injury. Arjona v. Calcano, 7 AD3d 279 (1st Dept. 2004). An MRI or a CT study is objective medical evidence of a disc injury. Id.; Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Straight leg raising tests performed by a doctor are also objective evidence of a disc injury. Brown v. Achy, 9 AD3d 30 (1st Dept. 2004). Medical observations of spasm, provided that the spasms are objectively ascertained, are objective evidence of serious injury. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Mild sprains to the lumbar and cervical spine are insignificant and as a matter of law, do not constitute a serious injury. Gaddy v. Eyler, 79 NY2d 955 (1992); Lebron v. Camacho, 251 AD2d 295 (2nd Dept. 1998).

Reliance on unsworn MRI reports is not detrimental to a plaintiff's case in establishing serious injury when the doctor whose affirmation is submitted establishes serious injury independent of said reports. Toledo v. A.P.O.W. Auto Repair/Towing, 307 AD2d 233 (1st Dept. 2003); Rice v. Moses, 300 AD2d 213 (1st Dept. 213). In such cases, reliance on unsworn MRI reports by the affirming doctor does not alone warrant granting of defendant's motion. Id.

When a plaintiff claims that he has suffered a serious injury because he has sustained a "permanent loss of use of a body organ, member, function or system," plaintiff has to establish that the injury sustained has caused a "total loss of use," of the affected body part to establish a serious injury under that category of the insurance law. Oberly v. Bangs Ambulance, Inc., 96 NY2d 295 (2001).

A plaintiff who claims that he has suffered a serious injury because he has sustained a "permanent consequential limitation of use of a body organ or member," must establish, that the injury is permanent, a medical determination, and that the limitation is significant rather than slight. Licari v. Elliot, 57 NY2d 230 (1982). A limitation that is consequential means one that is important. Id.

When a plaintiff claims that he has suffered a serious injury because he has sustained a "significant limitation of use of a body function or system," plaintiff must demonstrate that the injury alleged, has limited the use of the afflicted area in a significant way rather than a mild one. Licari v. Elliot, 57 NY2d 230 (1982). As a matter of law, mild, slight, or minor limitations are insufficient to constitute a serious injury under this section of the insurance law. Id. The [*12]word "significant," means that the injury is important and relates to medical significance. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). The medical significance of an injury, "involves a comparative determination of the degree or qualitative nature of an injury based on normal function, purpose and use if the body part." Id. at 353.

When a plaintiff claims that he has suffered a serious injury because he has sustained "a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment," he has to demonstrate, besides the medically determined injury, that he was indeed prevented from performing activities for at least 90 days and that the curtailment was to great degree rather than slight. Licari v. Elliot, 57 NY2d 230 (1982). Subjective complaints of occasional transitory headaches and dizziness do not qualify as a serious injury. Id. Further, a claim pursuant to this section of the Insurance Law must be supported by objective medical evidence, detailing the injury and the limitations such injury. Beaubrum v. New York City Transit Authority, 9 AD3d 258 (1st Dept. 2004).

An unexplained gap in treatment which renders any conclusion as to causation speculative, warrants summary judgment in defendant's favor. Pommells v. Perez, 4 AD3d 101 (1st Dept. 2004), affirmed by, Pommells v. Perez, 4 NY3d 566 (2005); Shinn v. Cantanzaro, 1 AD2d 195 (1st Dept. 2003); Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003). In both Shinn and Pommells, the medical evidence substantiating the injury came after a gap in treatment. In those cases medical treatment prior to the gap either yielded no injury or there was no treatment prior to the gap.

Similarly, an unexplained gap in treatment between treatment received shortly after the accident and treatment received long thereafter, warrants dismissal of plaintiff's case. Pommells v. Perez, 4 NY3d 566 (2005). While the First Department previously held that gaps in treatment, whether explained or unexplained, were not a basis for granting a defendant summary judgment and instead, were issues, bearing on weight rather than admissibility, and for the jury to decide, See, Brown v. Achy, 9 AD3d 30 (1st Dept. 2004 ); Ramos v. Dekhtyar, 301 AD2d 428 (1st Dept. 2003); Akamnou v. Rodriguez, 12 AD3d 187 (1st Dept. 2004); Rosario v. Universal Truck & Trailer Service, Inc., 7 AD3d 306 (1st Dept. 2004); Cruz v. Castanos, 10 AD3d 277 (1st Dept. 2004), the Court of Appeals has come to a different conclusion. Pommells v. Perez, 4 NY3d 566 (2005). In Pommells, the Court held that while, for purposes of summary judgment, cessation, or a gap in treatment, if explained, was not dispositive; to avoid summary judgment, a plaintiff is now required to offer a reasonable explanation for the gap in treatment. Id. Since Pommells, the First Department has applied the holding in Pommells, holding that an unexplained gap in treatment is fatal to a plaintiff's claim of serious injury. Colon v. Kempner, 20 AD3d 372 (1st Dept. 2005). While not specifically addressed in Pommells, based on the cases that follow that decision, it is clear that, to raise an issue of fact, explanations for gaps in treatments must be [*13]proffered by doctors within medical reports or affidavits. Farozes v. Kamran, 2005 WL 2438929 (2nd Dept. 2005); Ali v. Vasquez, 797 AD3d 520 (2nd Dept. 2005); Hernandez v. Taub, 19 AD3d 368 (2nd Dept. 2005). Alternatively, when the explanation for the gap in treatment is proffered by plaintiff, it must be supported by corroborative proof. Paul v. Allstar Rentals, Inc., 2005 WL 2438307 (2nd Dept. 2005).

Assuming the Court has competent, admissible, but conflicting medical evidence and or affidavits on the issue of serious injury, summary judgment is usually not warranted. Cassagnol v. Willaimsburg Plaza Taxi, 234 AD2d 208 (1st Dept. 1996). Conflicting medical evidence on the issue of the permanency and significance of a plaintiff's injuries warrant denial of summary judgment. Noble v. Ackerman, 252 AD2d 392 (1st Dept. 1998).

Discussion

Castillo has demonstrated prima facie entitlement to summary judgment on the issue of liability. The evidence indicates that the accident herein occurred at an intersection where Castillo had the right of way and Torres had to abide by a stop sign. The evidence demonstrates that the accident occurred seconds after Torres and Castillo entered the intersection. Castillo testified that he was driving on Theriot at no more than 25 miles per hour, was looking ahead, was using his headlights, and never saw Torres' vehicle prior to impact. He further testified that he had the right of way and that traffic traveling on Guerlain was controlled by a stop sign. Given the case law, Castillo had no duty to look for traffic on Theriot, which might have disobeyed the stop sign. Further he was entitled to assume that traffic would stop for him, since he had the right of way. Castillo has demonstrated that he was in no way negligent in the operation of his vehicle. In fact his testimony has demonstrated that Torres violated VTL §1142, by proceeding into an intersection, and failing to yield to Castillo's vehicle, which by all accounts was approaching the intersection. Castillo has thus established prima facie entitlement to summary judgment.

The evidence submitted in opposition to Castillo's motion fails to raise a triable issue of fact with regard to Castillo's negligence. The testimony by both plaintiff and Torres indicates that they were traveling on Guerlain, approached the intersection of Theriot and Guerlain, and faced a stop sign. They stopped thereat, looked for traffic, saw none and proceeded through the intersection. Seconds later, they were involved in an accident with a vehicle they had not seen prior to impact. This version of the accident not only fails to casts negligence upon Castillo but serves to bolster Torres' negligence and violation of VTL §1142. The fact that Torres proceeded into the intersection and could not clear the same without having the instant accident is evidence that it was not safe to proceed through the intersection in the first place. Additionally, even though both plaintiff and Torres state that they did not see Castillo's vehicle prior to impact, they are charged with seeing it as a matter of law. Clearly, since the accident happened, the vehicle was there and they failed to see it. This is particularly true in light of Castillo's testimony that he was traveling down Theriot prior to impact. Most important is that none of the testimony by plaintiff or Torres' rebuts the showing by Castillo indicating that he was not negligent. Torres [*14]and plaintiff did not see the Castillo vehicle prior to impact and cannot say what it was doing or how it was being operated. The issue of headlights lacks merit because neither Torres or plaintiff saw the vehicle prior to impact and at best can only say that Castillo's vehicle had no headlights on after and not before the collision. Castillo is therefore granted summary judgement.

Notwithstanding the above, all defendants are entitled to summary judgment over plaintiff because defendants have demonstrated that she did not sustain a serious injury and she has failed to create a triable issue of fact on that issue. Defendants have demonstrated prima facie entitlement to summary judgment using plaintiff's own medical records. Plaintiff's own medical records indicate that she had sustained the very same injuries alleged herein in a prior motor vehicle accident on November 2, 2002. Kolesnik's report indicates that plaintiff was afflicted with neck, back, and head injuries and that the same were caused by the accident on November 2, 2002, twenty days prior to the instant accident. Gno's comes to a similar conclusion with regard to plaintiff's complaints of headaches and dizziness. More importantly, defendant's doctors examined plaintiff and concluded, after employing medical and objective testing that plaintiff had no knee, back, neck, head, or psychiatric injuries. Plaintiff's physical examination yielded normal ranges of motion in her allegedly injured body parts, and a psychiatric examination found no evidence of any psychiatric injuries. All doctors found no evidence of disability and found that plaintiff required no further treatment and could continue work, school, and all other daily activities. Consequently, defendants have established prima facie entitlement to summary judgment.

Plaintiff has failed to raise a triable issue of fact sufficient to preclude summary judgment. Plainitff's medical evidence fails for two reasons. First, the medical evidence fails to establish causation between plaintiff's injuries and the accident herein. Diwan's report fails to raise a triable issue of fact with respect to serious injury. Diwan's first examination of plaintiff was conducted on March 17, 2003, almost three months after the accident herein. Consequently, his examination is only probative as to plaintiff's limitations as they existed on the date of his examination. His opinion as to causation and as to plaintiff's medical condition prior to his examination is speculative and cannot establish the existence of a serious injury as a matter of law. Pommells v. Perez, 4 AD3d 101 (1st Dept. 2004), affirmed by, Pommells v. Perez, 4 NY3d 566 (2005); Shinn v. Cantanzaro, 1 AD2d 195 (1st Dept. 2003); Vaughan v. Baez, 305 AD2d 101 (1st Dept. 2003). While Diwan describes reviewing plaintiff's medical records, said records are not specifically listed and are not provided, let alone submitted in admissible form. Consequently, since they were not provided, Diwan is not entitled to rely on them for purposes of establishing a serious injury. Puerto v. Omholt, 17 AD3d 650 (2nd Dept. 2005); Friedman v. U-Haul Truck Rental, 216 AD2d 266 (2nd Dept. 1995). Moreover, Diwan's report, as to plaintiff's limitations, specifically limitations in range of motion, fails to ascribe numerical values to said limitations, state what planes said limitations are limited to and how the same compare to normal. Consequently, the report is deficient as a mater of law, because it lacks the necessary objective medical evidence. In sum, Diwan's affirmation, presents the Court with no evidence establishing plaintiff's medical condition, her injuries, or medically determined limitations immediately following the accident or for almost three months thereafter. [*15]

Insler's report suffers from the same shortcomings. Said report indicates that Insler did not treat plaintiff until July 21, 2004, a year and one half after the accident. Consequently, any opinion as to causation is speculative and cannot establish the existence of a serious injury as a matter of law.

The second reason plaintiff's medical submissions fail to establish the existence of a serious injury is that it fails to rebut or address the medical evidence submitted by Castillo, indicating that the injuries herein were the result of the accident on November 2, 2002. Plaintiff's medical records indicate that plaintiff sustained the very injuries alleged herein due to a prior accident on November 2, 2002. None of the medical reports submitted by plaintiff addresses or rebuts this evidence. Thus for this additional reason, she fails to raise an issue of fact as to serious injury. Pommells v. Perez, 4 NY3d 566 (2005); Franchini v. Palmieri, 1 NY3d 536 (2003). Plaintiff's testimony with regard to her limitations is in it of itself to insufficient to establish a serious injury. First said testimony fails to sufficiently establish that plaintiff was substantially limited by her injuries. Second, in the absence of medical evidence establishing injury and limitations, particularly in the almost three months following the accident, plaintiff has failed to establish a medically determined injury as a result of this accident. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). It is hereby

ORDERED that the complaint herein be dismissed, in its entirety, against all defendants, with prejudice. It is further

ORDERED that defendants serve a copy of this Order with Notice of Entry on plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated: December 19, 2005

Bronx, New York

________________________________Nelson S. Roman, J.S.C