Vanegas v Verpault

[*1] Vanegas v Verpault 2007 NY Slip Op 52480(U) [18 Misc 3d 1109(A)] Decided on December 11, 2007 Supreme Court, Nassau County Mahon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 4, 2008; it will not be published in the printed Official Reports.

Decided on December 11, 2007
Supreme Court, Nassau County

Maria E. Vanegas and Heriberto Banegas, Plaintiff(s),

against

Kevin Verpault and Scott M. Lefferts, Defendant(s).



1117/2007

Roy S. Mahon, J.

The motion by the defendants for an Order pursuant to CPLR Rule 3212 and Article 51 of the Insurance Law of the State of New York granting summary judgment to defendants, Kevin Verpault and Scott M. Lefferts, dismissing the complaint of plaintiffs, Maria E. Vanegas and Heriberto Banegas, for personal injuries allegedly sustained in a motor vehicle accident on March 13, 2005, on the ground that the injuries alleged by the plaintiffs do not satisfy the "serious injury" threshold requirement of Section 5102(d) of the Insurance Law; and thus their claims for non-economic loss are barred by Section 5104(a) of the statute, is determined as hereinafter provided.

This personal injury action arises out of a motor vehicle accident that occurred on March 13, 2005 at approximately 3:15 p.m. at the intersection of William Street and Newbridge Road, Hicksville, New York.

The plaintiffs in the plaintiffs' Verified Bill of Particulars sets forth:

"Plaintiff Maria E. Vanegas sustained the following injuries:

Neck and low back pain. Neck pain is exacerbated with range of motion. There is numbness in the left hand as well. Back pain is radiating into both legs left more than right, mainly with tightness, with numbness in both, left more than right.

Post traumatic headaches.

Cervical radiculitis. [*2]

Left lumbar radiculitis.

Magnetic Resonance Imaging scan of the lumbar spine revealed the following:

Posterior central disc herniation T11/12 indenting the ventral CSF space without cord contact. Posterior subligamentous disc bulge at L5/S1.

Magnetic Resonance Imaging of the cervical spine revealed the following:

Kyphotic curvature of the cervical spine with a mild right cervical scoliosis. Posterior disc herniations at the C3/4 and C4/5 levels, which are each encroaching upon the ventral aspect of the thecal sac. Posterocentral disc herniation at the C5/6 level, which is impinging upon and deforming the ventral aspect of the cord without definite underlying signal change.

Plaintiff Heriberto Vanegas sustained the following injuries:

Neck pain with low back pain that travels into the right arm and down the right posterior thigh.

Pain to both shoulders and down the left leg.

Post traumatic headaches.

Cervical radiculitis.

Left lumbar radiculitis.

Magnetic Resonance Imaging Scan of the cervical spine revealed the following:

Kyphotic curvature of the cervical spine. Posterior disc bulge at the C3/4 level favoring the left side. This is encroaching upon the ventral aspect of the thecal sac and left lateral recess. Posterior disc herniation at the C5/6 level, which is encroaching upon the ventral aspect of the thecal sac and lateral recesses bilaterally and is impinging upon the ventral aspect of the cord, without definite underlying signal changes.

Magnetic Resonance Imaging Scan of the lumbar spine revealed the following:

Posterior disc bulges at the L1/2 levels, which are each encroaching upon the ventral aspect of the thecal sac and lateral recesses bilaterally. Posterior disc bulge at the L5/S1 level, which is encroaching upon the anterior epidural fate and lateral recesses bilaterally.

All of the above injuries are accompanied by severe pain, tenderness, swelling, stiffness, discomfort, distress, weakness, stress, restriction of motion and with related injuries, damages, compromise and degeneration of the underlying soft tissues, blood vessels, bones, nerves, tendons, ligaments and musculature and all of the natural consequences flowing therefrom. [*3]

The above injuries are accompanied by severe pain, tenderness, swelling, stiffness, discomfort, distress, weakness, depression, stress, psychological difficulties, restriction of motion and with related injuries, damages, compromise and degeneration of the underlying soft tissues, blood vessels, bones, nerves, tendons, ligaments and musculature and all of the natural consequences flowing therefrom.

As a result of the above injuries, plaintiffs have suffered and continues to suffer severe pains in the head, severe and persistent headaches, dizziness, nervousness, tension, vertigo, anxiety, irritability, emotional anguish, depression and distress, loss of appetite and difficulty sleeping.

Plaintiffs have and will continue to experience impairment, disruption and difficulty with daily activities, way of life and enjoyment of life including significant impairment of numerous daily activities that plaintiffs had previously taken for granted.

Anxiety, tension, difficulty sleeping, personality changes, depression, anhedonia and distress.

Limitations, diminution and/or impairment of functions, activities, vocation, avocation and other activities which plaintiff engaged in prior to this accident.

Impairment of spinal integrity and exacerbation of any pre-existing symptomatic and/or asymptomatic spondylitic changes, osteoporosis, arthritis, hypertrophic vertebral changes, narrowing of vertebral spaces, degenerative vertebral or disc changes.

Aggravation, activation and/or precipitation of any underlying hypertrophic, degenerative, arthritic, circulatory, arterial, venous or systemic condition complained of.

Any and all of the above injuries at/or near any body joint will result in traumatic arthritic and/or onset of arthritis, osteoarthritic involvement, osteoporosis and/or necrosis at an earlier age, at an accelerated rate and with greater severity than would have otherwise occurred."

In support of the instant application the defendants amongst other things submit the plaintiff Maria Vanegas' Winthrop University Hospital's Emergency Department's record from a prior October 20, 1999 accident; the plaintiff Maria Vanegas' Nassau University Medical Center's Emergency Department's records; an affirmed letter report dated December 14, 2006 of Jacquelin Emmanual, M.D., an orthopedist of a December 14, 2006 orthopedic examination of the plaintiff Maria Vanegas; an affirmed letter report dated December 14, 2006 of Maria Audrie DeJesus, M.D., a neurologist of a neurological examination of the plaintiff Maria Vanegas conducted on December 14, 2006; an affirmed letter report dated December 14, 2006 of Dr. Emmanuel of a December 14, 2006 orthopedic examination of the plaintiff Heriberto Banegas; an affirmed letter report dated December 14, 2006 of Dr. DeJesus of a neurological examination of the plaintiff Heriberto Banegas; an affirmed letter report dated December 7 ,2006 of Melissa Sapan Cohen, M.D., a radiologist of a review of cervical and lumbosacral spine MRIs of the [*4]plaintiff Heriberto Vanegas performed on April 1, 2005 at Damadian MRI and the November 9, 2006 deposition transcripts of the respective plaintiffs.

The rule in motions for summary judgment has been succinctly re-stated by the Appellate Division, Second Dept., in Stewart Title Insurance Company, Inc. v. Equitable Land Services, Inc., 207 AD2d 880, 6l6 NYS2d 650, 65l (Second Dept., l994):

"It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 85l, 853, 487 NYS2d 3l6, 476 NE2d 642; Zuckerman v. City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 404 NE2d 7l8). Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (State Bank of Albany v. McAuliffe, 97 AD2d 607, 467 NYS2d 944), but once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action (Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 50l NE2d 572; Zuckerman v. City of New York, supra , 49 NY2d at 562, 427 NYS2d 595, 404 NE2d 7l8)."

It is noted that the question of whether the plaintiff has made a prima facie showing of a serious injury should be decided by the Court in the first instance as a matter of law (see Licaro v. Elliot, 57 NY2d 230, 455 NYS2d 570, 441 NE2d 1088; Palmer v. Amaker, 141 AD2d 622, 529 NYS2d 536, Second Dept., 1988; Tipping-Cestari v. Kilhenny, 174 AD2d 663, 571 NS2d 525, Second Dept., 1991).

In making such a determination, summary judgment is an appropriate vehicle for determining whether a plaintiff can establish prima facie a serious injury within the meaning of Insurance Law Section 5102(d) (see, Zoldas v. Louise Cab Corp., 108 AD2d 378, 381, 489 NYS2d 468, First Dept., 1985; Wright v. Melendez, 140 AD2d 337, 528 NYS2d 84, Second Dept., 1988).

Serious injury is defined, in Section 5102(d) of the Insurance Law, wherein it is stated as follows:

"(d) 'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, ember, 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."

Dr. Emmanuel sets forth in said physician's report as to the orthopedic examination of the plaintiff Maria E. Vanegas: [*5]

On physical examination today, I found the claimant to be alert, cooperative and well oriented to person, place and time. Her communication skills, recent and remote memory, insight and judgment, affect and mood are all within normal limits. She is able to follow commands and cooperate with the examination. My findings today are as follows:

Cervical Spine: Examination of the neck reveals no visible deformity. There was no tenderness to palpation of he cervical paraspinal musculature. No muscle spasm was noted. Range of motion of the cervical spine was flexion to 45 degrees (45 degrees being normal), extension to 45 degrees (45 degrees being normal), right rotation to 70 degrees, left rotation to 70 degrees (70 degrees being normal), right lateral flexion to 45 degrees and left lateral flexion to 45 degrees (45 degrees being normal).

On neurological examination, there were no motor deficits in the upper extremities. Motor strength in each range was 5/5. Deep tendon reflexes of the biceps, triceps and brachioradialis were 2+. There is no sensory deficit of the medial, lateral arm, forearm, hand and fingers of the upper extremities. There is no atrophy of the intrinsic muscles. Cervical Compression was negative.

Lumbar Spine: There are no spasms or tenderness noted over the paraspinal musculature on palpation. Range of motion of the lumbar spine reveals forward flexion to 90 degrees (90 degrees being normal), extension to 30 degrees and right and left lateral bending to 30 degrees (30 degrees being normal).

Neurological examination reveals patellar and Achilles reflexes to be 2+. Motor strength of the lower extremities is graded at 5/5. Sensory examination of the lower extremities including the medial and lateral thigh, calf, leg and foot was normal. There is no atrophy noted in the intrinsic muscles of the lower extremities. Straight leg raising is negative bilaterally. Claimant is able to tiptoe and heel walk.

Left Wrist: Examination fo the left wrist revealed no evidence of tenderness or swelling. The Tinel sign was negative. Range of motion of the left wrist reveals dorsiflexion to 90 degrees (90 degrees being normal), volar flexion to 90 degrees (90 degrees being normal), radial deviation to 20 degrees (20 degrees being normal) and ulnar deviation to 30 degrees (30 degrees being normal).

Diagnosis:

Status post cervical and lumbar sprain, resolved.

Left carpal tunnel syndrome resolved.

As to plaintiff Maria E. Vanegas' neurological examination, Dr. DeJesus reports:

Physical Examination:

This claimant is a 43-year-old left-handed female who stands 5'4" tall, weighs 119 pounds and has brown eyes and black hair.

Mental Status:

The claimant is alert, oriented to person, place and date and appears to have normal intellectual functions. Comprehension, memory and recall are normal. Her speech is fluent and clear without expressive or receptive aphasia. The information provided is appropriate and relevant. There are no depressive symptoms, no impairment of mood or affect and her thought processes appear to be intact without [*6]delusion or hallucination. Cognitive functions show no deficit. She understands the nature of th examination and is cooperative with all aspects of the examination.

Cranial Nerves:

The pupils are equal and reactive to light. Extraocular movements are full and visual fields are grossly intact. There is no nystagmus. The face shows symmetry and facial sensation is intact. Funduscopic examination revealed no papilledema. The hearing is normal. There is no weakness of the tongue, uvula, sternocleidomastoid or trapezius muscles.

Motor System:

Normal muscle tone is observed in both the upper and lower extremities. There is no atrophy or deformity. Strength is normal in the proximal and distal muscles of the upper extremities including the biceps, triceps, brachial radialis and extensor group of the forearms. Intrinsic hand muscles are intact with no atrophy. The claimant shows a normal handgrip bilaterally and could oppose the thumbs without difficulty. Rapid alternating movements are fully preserved. The muscles in the hands show normal appearance. The strength in the legs are intact including the pelvic girdle, quadriceps, hamstrings, extensor and flexor groups of the ankles and toes. She has good weight bearing.

Reflexes:

The deep tendon reflexes in the biceps, triceps, supinator, patellar and Achilles are normal at 1+. There is no spasticity or clonus.

Sensory:

Sensation was decreased to pinprick and vibration in the left upper and left lower extremity.

Gait and Coordination:

The claimant's gait is normal and without limp or ataxia. She can walk on toes, heels and in tandem. Romberg test is negative. Grasp and coordination are normal in both hands. Finger to nose testing is normal.

Cerebellar Examination:

There is no finger/nose or heel/shin dysmetria. There is no dysdiadochokinesia, nystagmus or ataxia.

Range of Motion:

There is full range of motion at the neck with flexion to 45 degrees (45 degrees being normal), extension to 45 degrees (45 degrees being normal), bilateral rotation to 70 degrees (70 degrees being normal) and side bending to 45 degrees bilaterally (45 degrees being normal) and complaint of pain on extension and no spasms. There is full range of motion of the lumbar spine with flexion to 90 degrees (90 degrees being normal), extension to 30 degrees (30 degrees being normal) and lateral bending to 30 degrees bilaterally (30 degrees being normal) and complaint of pain on right rotation and no spasms. Patrick's and Kernig's tests are negative. [*7]

Dr. Emmanuel's report as to the plaintiff Heriberto Banegas states:

On physical examination today, I found the claimant to be alert, cooperative and well oriented to person, place and time. His communication skills, recent and remote memory, insight and judgment, affect and mood are all within normal limits. He is able to follow commands and cooperate with the examination. My findings are as follows:

Cervical Spine: Examination of the neck reveals no visible deformity. There was no tenderness to palpation of the cervical paraspinal musculature. No muscle spasm was noted. Range of motion of the cervical spine was flexion to 45 degrees (45 degrees normal), extension to 45 degrees (45 degrees normal), right rotation to 70 degrees (70 degrees normal), left rotation to 70 degrees (70 degrees normal), right lateral flexion to 45 degrees and left lateral flexion to 45 degrees (45 degrees normal).

On neurological examination, there were no motor deficits in the upper extremities. Motor strength in each range was 5/5. Deep tendon reflexes of the biceps, triceps and brachioradialis were 2+. There is no sensory deficit of the medial, lateral arm, forearm, hand and fingers of the upper extremities. There is no atrophy of the intrinsic muscles. Cervical compression was negative.

Thoracic Spine: There is no tenderness to palpation over the trapezius and over the spinous process from T1 through T12. There is no paraspinal spasm. Sensation is intact. Lateral bending and rotation are complete and painless.

Lumbar Spine: There are no spasms or tenderness noted over the paraspinal musculature on palpation. Range of motion of the lumbar spine reveals forward flexion to 90 degrees (90 degrees normal), extension to 30 degrees (30 degrees normal), and right and left lateral bending to 30 degrees (30 degrees normal).

Neurological examination reveals patellar and Achilles reflexes to be 2+. Motor strength of the lower extremities is graded at 5/5. Sensory examination of the lower extremities including the medial and lateral thigh, calf, leg and foot was normal. There is no atrophy noted in the intrinsic muscles of the lower extremities. Straight leg raising is native bilaterally. Claimant is able to tiptoe and heel walk.

Left Shoulder: There is no tenderness on palpation of the left shoulder. Range of motion of the left shoulder reveals forward flexion to 180 degrees (180 degrees normal), abduction to 180 degrees (180 degrees normal) and external rotation to 50 degrees (50 degrees normal). Internal rotation is normal at 50 degrees (50 degrees normal). No crepitus is noted at the joints. There are no impingement signs.

Right Shoulder: There is no tenderness on palpation of the right shoulder. Range of motion of the left shoulder reveals forward flexion to 180 degrees (180 degrees normal), abduction to 180 degrees (180 degrees normal), and external rotation to 50 degrees (50 degrees normal). Internal rotation is normal at 50 degrees (50 degrees normal). No crepitus is noted at the joints. There are no impingement signs.

Right Knee: There is no joint line tenderness or effusion noted. There was no evidence of atrophy of the quadriceps noted on inspection. Range of motion of the knee was 130 degrees flexion (130 degrees normal) and extension of 0 degrees (0 degrees normal). There was no compliant of pain on these maneuvers. McMurray Test, Lachman, anterior drawer, pivot shift and posterior drawer tests are all negative bilaterally. There was no evidence of patello-femoral crepitus. The knee was stable on valgus and varus stressing. [*8]

Diagnosis:

Status post Cervical, Thoracolumbar Sprain/Strain resolved

Status post bilateral shoulder sprain resolved

Status post right knee sprain/contusion resolved

Dr. DeJesus states as to the plaintiff Heriberto Banegas:

Mental Status:

The claimant is alert, oriented to person, place and date and appears to have normal intellectual functions. Comprehension, memory and recall are normal. His speech is fluent and clear without expressive or receptive aphasia. The information provided is appropriate and relevant. Cognitive functions show no deficit. He understands the nature of the examination and is cooperative with all aspects of the examination.

Cranial Nerves:

The pupils are equal and reactive to light. Extraocular movements are full and visual fields are grossly intact. There is no nystagmus. The face shows symmetry and facial sensation is intact. Funduscopic examination revealed no papilledema. The hearing is normal. There is no weakness of the tongue, uvula, sternocleidomastoid or trapezius muscles.

Motor System:

Normal muscle tone is observed in both the upper and lower extremities. There is no atrophy or deformity. Strength is normal in the proximal and distal muscles of the upper extremities including the biceps, triceps, brachialradialis and extensor group of the forearms. Intrinsic hand muscles are intact with no atrophy. The claimant shows a normal handgrip bilaterally and could oppose the thumbs without difficulty. Rapid alternating movements are fully preserved .The muscles in the hands show normal appearance. The strength in the legs are intact including the pelvic girdle, quadriceps, hamstrings, extensor and flexor groups of the ankles and toes.

Reflexes:

The deep tendon reflexes in the biceps, triceps, brachioradialis, patellar and Achilles are normal at 2+. There is no spasticity or clonus.

Sensory:

The claimant evidences decreased sensation with pinprick in the right upper extremity and right lower extremity. Stereognosis and graphesthesia senses are intact. There is no impairment of position, vibration, tactile or temperature senses.

Gait and Coordination:

The claimant's gait was normal without limp or ataxia. He was able to walk on toes and heels and in tandem. Romberg test is negative. Grasp and coordination are normal in both hands. Finger to nose [*9]testing is normal.

Cerebellar Examination:

There is no finger/nose or heel/shin dysmetria. There is no dysdiadochokinesia, nystagmus or ataxia.

Range of Motion:

There is fully range of motion at the neck with flexion to 45 degrees (45 degrees being normal), extension to 45 degrees (45 degrees being normal), bilateral rotation to 70 degrees (70 degrees being normal) and side bending to 45 degrees bilaterally 945 degrees being normal) and no complaint of pain and no spasms. there is full range of motion of the thoracolumbar spine with flexion to 90 degrees (90 degrees being normal), extension to 30 degrees (30 degrees being normal) and lateral bending to 30 degrees bilaterally (30 degrees being normal) and no complaint of pain and no spasms. Patrick's and Kernig's tests are negative.

Diagnosis:

1.Status post Cervical and Thoracolumbar sprain.

2.Normal neurological examination.

Dr. Cohen states in her review of cervical and lumbar MRIs of the plaintiff Heriberto Vanegas:

Cervical Spine MRI:

Cervical spine MRI consists of sagittal T1 and T2 and gradient echo axial images. The examination was performed on 4/1/05 at Damadian MRI and is diagnostic.

There is reversal of the normal cervical lordosis. There is disc desiccation at all levels.

The C2-C3, C3-C4 and C4-C5 disc spaces are otherwise unremarkable.

At the C5-C6 level, there are small anterior osteophytes and circumferential disc bulging which effaces the ventral aspect of the thecal sac. There are marrow signal end plate degenerative changes with decreased signal on T1 and increased signal on T2 weighed images.

The C6-C7 and C7-T1 disc spaces are normal.

The marrow signal is normal. No intrinsic spinal cord abnormality is identified.

Impression:

Reversal of the normal cervical lordosis.

C5-C6 disc bulge.

Diffuse multilevel degenerative changes. [*10]

Discussion:

There is reversal of the normal cervical lordosis. This may reflect muscular spasm. Alternatively, this may be the result of positioning of the patient's neck within the cervical coil necessary to perform the examination.

At the C5-C6, there is disc space narrowing, circumferential disc bulging and anterior osteophytes. Disc bulging is unrelated to trauma. Disc bulging occurs as the outer fibers of the disc, also known as annulus fibrosis, lose their normal elasticity. This allows the central, more gelatinous portion of the disc to bulge circumferentially. There is also disc space narrowing. Disc space narrowing occurs when there is loss of the normal internal architecture of the disc, allowing it to collapse upon itself. This is within the spectrum of degenerative disc disease. There are small anterior osteophytes. These represent bony spurs which form off of the vertebral bodies. This is an attempt by the spine to stabilize itself in the setting of the degenerative process. This represents actual bone formation and is chronic in nature. There are also marrow signal end plate degenerative changes. This indicates that the degenerative changes at the C5-C6 level have been present long enough to result in changes within the adjacent vertebral bodies of bones.

There is diffuse disc desiccation throughout the spine. Disc desiccation indicates that the discs have dried out and lost their normal water content. This is the commencement of degenerative disc disease.

In my opinion, this patient has multilevel degenerative disc disease. There is no evidence of disc herniation or trauma-related injury on the submitted examination.

Lumbosacral Spine MRI:

Lumbosacral spine MRI consists of sagittal and axial T1 and T2 weighted images. The study was performed on 4/1/05 at Damadian MRI and is diagnostic.

The normal lumbar lordosis is maintained. The discs maintain normal height and signal characteristics on T2 weighted images. There is no evidence of disc bulge or disc herniation. No central canal or neural foraminal compromise is present.

The marrow signal is normal. The clonus is within normal limits.

Impression:

Unremarkable lumbosacral spine MRI.

Discussion:

This is a normal study. The discs maintain their normal bright appearance on the T2 weighted images. The normal flat posterior border of the discs is maintained on the axial images. There is no evidence for disc bulge or disc herniation.

In my opinion, this is a normal lumbosacral spine MRI. There is no evidence of pathology or trauma-related injury on the submitted examination.

The Court finds that the defendants have submitted evidence in admissible form to make a "prima [*11]facie showing of entitlement to judgment as a matter of law" (Winegrad v. New York University Medical Center, 64 NY2d 851, 853; Pagano v. Kingsbury, supra at 694) and is sufficient to establish that the plaintiff did not sustain a serious injury. Accordingly, the burden has shifted to the plaintiff to establish such an injury and a triable issue of fact (see Gaddy v. Eyler, 79 NY2d 955, 582 NYS2d 990, 591 NE2d 1176; Jean-Meku v. Berbec, 215 AD2d 440, 626 NYS2d 274, Second Dept., 1995; Horan v. Mirando, 221 AD2d 506, 633 NYS2d 402, Second Dept., 1995).

In opposition to the requested relief as to the plaintiff Maria Vanegas, said plaintiff submits two unsworn letter reports of Damadian MRI, one dated April 5, 2005 by John Himelfarb, M.D., of an MRI of the plaintiff Maria Vanegas' cervical spine and the other dated April 25, 2005 by Samuel Mayfield, M.D.; an affirmed "Follow UP Evaluation" dated May 31, 2005 of Sports Medicine and Spine Rehabilitation, P.C. by Harold Avella, M.D.; an unsworn "Neurological Consultation" letter of Jean-Robert Desroulsaux, M.D., dated July 9, 2005 to a treating physician of the plaintiff Maria Vanegas; an unsworn June 17, 2005 consultation letter of Orthopedic Excellence of L.I., P.C. by Victor Katz, M.D. to a treating physician of Maria Vanegas; and an affirmed letter report dated November 7, 2005 of Frank M. Hudak, M.D., an orthopedist of a physical examination of the plaintiff Maria Vanegas conducted on November 7, 2005.

The plaintiff Heriberto Banegas submits two letter reports both dated April 5, 2005 of Damadian MRI both by John Himelfarb, M.D., of an MRI of said plaintiff's cervical spine and lumbar spine; an unsworn June 3, 2005 consultation of Orthopedic Excellence of L.I., P.C. by Victor Katz, M.D. to a treating physician of the plaintiff Heriberto Banegas; and an affirmed letter report dated August 16, 2007 of Sports Medicine & Spine Rehabilitation P.C. by Joseph Gregorace, D.O. of a physical examination of the plaintiff Heriberto Banegas conducted on August 16, 2007.

The Court initially observes that as to the respective plaintiffs, the respective reports of Damadian MRI, the June 3, 2005 consultation report of Orthopedic Excellence of L.I., P.C. as to the plaintiff Heriberto Banegas; the July 9, 2005 consultation report of Jean-Robert Desrouleaux, M.D. and the June 17, 2005 consultation report of Orthopedic Excellence of L.I., P.C. both as to the plaintiff Maria Vanegas are all unsworn and as such not in admissible form (see Grasso v Angerami, 79 NY2d 813, 580 NYS2d 177, 588 NE2d 76 (Second Dep't., 1991). Accordingly, the Court will not consider said reports in opposition to the defendants' requested relief.

As to the plaintiff Maria Vanegas, a review of Dr. Avella's report from Sports Medicine & Spine Rehabilitation, P.C. dated May 31, 2005 does not set forth that said physician causally related the conditions set forth to the accident in issue (see Ukonu v Velazquez, 213 AD2d 628, 624 NYS2d 195 (Second Dep't., 1995). A review of the report of Frank M. Hudak, M.D. as to Maria Vanegas sets forth subjective complaints of pain insufficient to establish a serious injury pursuant to the Insurance Law (see Scheer v Koubek, 70 NY2d 678, 518 NYS2d 788, 512 NE2d 309).

As to the plaintiff Heriberto Banegas, Dr. Gregorace sets forth that he saw Heriberto Banegas on September 27, 2005 and thereafter on August 16, 2007. Neither Dr. Gregorace nor the plaintiff have offered an adequate explanation for this gap in treatment (see Pommells v Perez, 4 NY3d 566, 797 NYS2d 380; Nemchyonok v Peng Liu Ying, 2 AD3d 421, 767 NYS2d

811 (Second Dep't., 2003).

Based upon the foregoing, the defendants' application for an Order pursuant to CPLR Rule 3212 and Article 51 of the Insurance Law of the State of New York granting summary judgment to defendants, Kevin Verpault and Scott M. Lefferts, dismissing the complaint of plaintiffs, Maria E. Vanegas and [*12]Heriberto Banegas, for personal injuries allegedly sustained in a motor vehicle accident on March 13, 2005, on the ground that the injuries alleged by the plaintiffs do not satisfy the "serious injury" threshold requirement of Section 5102(d) of the Insurance Law; and thus their claims for non-economic loss are barred by Section 5104(a) of the statute, is granted.

DATED: 12/11/07_________________________________

J.S.C.