Auguste v PTM Mgt. Corp.

[*1] Auguste v PTM Mgt. Corp. 2008 NY Slip Op 52581(U) [22 Misc 3d 1102(A)] Decided on December 24, 2008 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2008
Supreme Court, Kings County

Heather Auguste and Montelle Cadogan, Plaintiffs,

against

PTM Management Corp., New York City Transit Authority, Maria A. Lewis and Hubert Gordon, Defendants.



2307/07

Robert J. Miller, J.

Upon the foregoing papers, defendants PTM Management Corp., New York City Transit Authority and Maria A. Lewis (collectively, PTM) move, and defendant Hubert Gordon (Gordon) cross-moves, for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint with respect to plaintiff Montelle Cadogan on the ground that she did not sustain a "serious injury" as that term is defined in Insurance Law § 5102 (d). Montelle Cadogan and Heather Auguste (plaintiffs) move for an order, pursuant to CPLR 3126, striking Gordon's answer due to his failure to appear at a deposition.

Factual and Procedural Background

Plaintiffs commenced this action seeking damages for injuries they allegedly sustained while they were crossing a street in Brooklyn, New York, on August 7, 2006 when they were struck by defendant Gordon's automobile which had been rear-ended by PTM's Access-A-Ride bus operated by defendant Lewis. The 62-year-old Montelle Cadogan (plaintiff) was taken by ambulance to Brookdale University Hospital and Medical Center. The hospital's triage assessment states that she complained of lower back pain, swollen nose, bruises to her right arm, and chest discomfort. In particular, the hospital doctors' examinations of plaintiff indicate that she suffered a small abrasion on her lip and bruising to the right side of her nose and joint tenderness to L4/L5 area without swelling. According to the hospital notes, she was referred for an x-ray which ruled out a fracture. She was released from the hospital on the same day. The hospital's discharge instructions state that as a result of her motor vehicle accident, she may have suffered "pulled muscles," "sprained ligaments" and/or "[n]eck muscle strains." The discharge instructions advised her to apply ice packs [*2]to the painful areas to limit swelling and pain, rest more than usual, avoid strenuous activity during the next few days, and take ibuprofen, if needed, for pain or swelling.

On August 11, 2006, four days after the accident, plaintiff came under the care of Dr. Emmanuel Gelin, an internist. On plaintiff's first visit to Dr. Gelin, she complained of headaches, neck stiffness and pain, right shoulder and right knee pains, low back pain, right hip and right leg pain and numbness. She further complained of difficulty of getting dressed and undressed, difficulty of getting on and off the examining table, inability to take steps on her heels or toes, and inability to squat down. On that day, Dr. Gelin conducted a physical examination and quantified plaintiff's lumbar and cervical range of motion (ROM) as follows: in the lumbar spine, flexion was 60° (normal 90°), extension 20° (normal 30°), left and right lateral flexion 20° (normal 30°), left and right rotation 60° (normal 80°); in the cervical spine, flexion was 30° (normal 45°), extension 30° (normal 45°), left and right flexion 30-35° (normal 45°), left and right rotation 50-60° (normal 80°). Dr. Gelin further found that plaintiff had: (1) moderate tenderness along the lumbar sacral junction at the lumbar sacral levels with spasms present; (2) a decreased ROM of cervical spine for C3-C7 with pain and paraspinal spasm on palpation of paraspinal musculature; and (3) decreased flexion and extension in her right shoulder, hip and knee. Dr. Gelin referred plaintiff for magnetic resonance imaging (MRI) studies and electrodiagnostic studies.[FN1]

An MRI study was made of plaintiff's lumbar spine on September 8, 2006 and of her right shoulder on August 30, 2006. EMG (electromyogram) and NCS (Nerve Conduction Study) of plaintiff's upper and lower extremities were conducted on September 22, 2006.

The September 8, 2006 MRI of plaintiff's lumbar spine, as interpreted by radiologist Dr. Mark Shapiro (Dr. Shapiro), states: "Loss of signal and central herniations at L4-5 and L5-S1, creating impingement on the thecal sac.[FN2] There is extension of disc into the neural foramen[FN3] bilaterally."[FN4]

The August 30, 2006 MRI of plaintiff's right shoulder, as interpreted by radiologist Dr. Sasan Azar (Dr. Azar), concludes: "Focal partial articular surface tear of the supraspinatus[FN5] tendon about its insertion site to the greater tuberosity. Slight narrowing of the supraspinatus outlet due to hypertrophy of the capsule of the acromioclavicular joint[FN6] and a type II acromion."[FN7] [*3]

The September 22, 2006 unaffirmed report of the EMG/NCS studies, as interpreted by Dr. Nicolas G. El-Khoury (Dr. El-Khoury), notes an S1 radiculopathy[FN8] on the right side, but no evidence of cervical radiculopathy.

Based on all of the above, Dr. Gelin diagnosed plaintiff with lumbar disc herniation, sacral herniation and S1 radiculopathy, cervical sprain, right shoulder supraspinatus tear, post-traumatic headache, right hip contusion, and right knee derangement," as stated in his July 7, 2008 report. Dr. Gelin referred plaintiff for physical therapy which she underwent for "several months" following the accident. There is no indication that she has received any additional treatment since that time.

Dr. Gelin last saw plaintiff on November 26, 2007 at which time he re-examined her lumbar spine, cervical spine and right shoulder. As set forth in his July 16, 2008 affirmation, Dr. Gelin's quantitative findings of plaintiff's ROM in her lumbar and cervical spine at the November 26, 2007 examination were identical to those he found at the August 11, 2006 examination, although no spasms were apparently present. Dr. Gelin did not re-test the ROM of plaintiff's right shoulder. Dr. Gelin concluded in his affirmation that plaintiff's injury is: (1) "a significant limitation of use of the lumbar spine, cervical spine and right shoulder"; (2) permanent; and (3) causally related to the accident. In addition, he incorporated into his affirmation his earlier findings made in his July 7, 2008 report.

Plaintiff alleges in her bill of particulars that as a result of the accident and the aforementioned injuries, she sustained a "serious injury" based on the following pertinent clauses of Insurance Law § 5102 (d):

"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."[FN9]

[*4]Defendants' Motions for Summary Judgment

On April 18, 2008, PTM served its summary judgment motion for dismissal of plaintiff's complaint on the ground that she did not sustain a "serious injury," as that term is defined in Insurance Law § 5102.[FN10] On April 25, 2008, Gordon cross-moved for the same relief. In support of their respective motions, defendants rely on the same submissions which consist of the affirmed reports of: (1) Dr. Chandra M. Sharma, a neurologist (Dr. Sharma); (2) Dr. Harvey Fishman, an orthopaedic surgeon (Dr. Fishman); and (3) Dr. David A. Fisher, a radiologist.

Neurologist Dr. Sharma

Defendants submit a March 11, 2008 report of Dr. Sharma who conducted an independent neurological examination of plaintiff on the same day and who, in preparation of his report, reviewed plaintiff's medical records.[FN11] Plaintiff reported to Dr. Sharma that her present complaints were pain in the lower back and the right foot. She also reported that she used a cane and took over-the-counter medications such as Tylenol or Advil. Dr. Sharma notes that plaintiff underwent physical therapy with heat, massage and stimulation three times a week for a few months. At the time of Dr. Sharma's examination, plaintiff was not undergoing any treatments.

Following his neurological examination of plaintiff, Dr. Sharma reports that he found no impairment of mood or affect and that her cognitive functions showed no deficit. He further reports that her pupils were equal and reactive and that her eyes showed normal conjugate movements and normal visual fields. He also reports normal motor tone in her arms and legs without any atrophy or deformity; normal appearance of hand muscles; normal pattern of grasping, apposition and manipulation of the fingers; and normal leg strength with good weight bearing. He notes normal reflexes in her arms, right leg and right ankle. He states that plaintiff had an antalgic gait[FN12] due to pain in the right foot; she used a cane but was able to walk a few steps in his office without a cane; she was able, with her hands supported, to stand on her toes and heels; the rapid alternating movements and finger-nose testing were all done normally; the hands showed normal grasp and coordination; and the arms and legs were symmetrical without any atrophy or deformity. Additionally, he reports that plaintiff's posture was normal; the ROM of her cervical spine was [*5]normal: flexion was 50° (normal 50°), extension 60° (normal 60°), left and right flexion 45° (normal 45°), left and right rotation 80° (normal 80°). He states that the ROM of her lumbar spine was normal: flexion was 90° (normal 90°), extension 25° (normal 25°), left and right lateral flexion 25° (normal 25°), left and right rotation 30° (normal 30°). He further states that: plaintiff, standing upright, could bend forward and touch her feet; in the supine position, her leg elevation was 60° bilaterally; and she was able to place her right foot on her left knee and her left foot on her right knee. The movements of plaintiff's neck are reported to have been normal in all directions without pain. The movements of her shoulders are reported to have been normal also without pain.

As diagnosis, Dr. Sharma opines: (1) subjective lumbar pain, and (2) normal neurological examination. In conclusion, he further opines that there are no permanent neurological injuries.

Orthopaedic Surgeon Dr. Fishman

Defendants also submit a March 14, 2008 report of Dr. Fishman, who performed an independent orthopaedic examination of plaintiff's spine and upper and lower extremities on March 11, 2008, and, in preparation of his report, reviewed the same medical records that were provided to Dr. Sharma. Plaintiff reported to Dr. Fishman that her present complaints were aches and pain all over her neck, back, shoulders and foot, mostly all on the right side. Dr. Fishman observes that plaintiff climbed easily in and out of the chair and on and off the examining table without hesitation or assistance and that all her movements were quite spontaneous without evidence of guarding. Unlike Dr. Sharma, Dr. Fishman found on his examination of plaintiff that she had a reduced ROM in her cervical spine, which he believes is "probably age related due to degenerative osteoarthritis," as follows: flexion was 40° (normal 45°), extension 40° (normal 45°), left and right flexion 40° (normal 45°), left and right rotation 65° (normal 70°). Dr. Fishman also found that plaintiff had a reduced ROM in both her thoracolumbosacral spine and her right shoulder, as follows: lumbar spine, flexion was 85° (normal 90°), extension 25° (normal 30°), left and right lateral flexion 40° (normal 45°); right shoulder, anterior flexion was 165° bilaterally (normal 170°), abduction 175° bilaterally (normal 180°), adduction, external and internal rotation and posterior extension 40° (normal 45°). According to Dr. Fishman, the straight leg raising test, which addresses the lumbar spine, was negative at 80-90° in both seated and reclining positions, and there was no evidence of any paravertebral spasm or trigger point tenderness.

Dr. Fishman concludes that plaintiff "sustained a cervical and lumbosacral spine strain/sprain and contusion to her upper and lower extremities superimposed on chronic degenerative osteoarthritis." His diagnosis is that: (1) "[o]rthopedically there is no evidence of any causally related disability related to the above accident"; (2) plaintiff "is not disabled from her work activity or from activities of daily living"; and (3) "[h]ousehold help, special transportation, durable medical equipment and any further testing or therapy are not indicated [n]or necessary."

Radiologist Dr. Fisher

Defendants finally offer the September 17, 2007 reports of radiologist Dr. Fisher who reviewed the MRIs of plaintiff's lumbar spine and right shoulder performed shortly after the accident. He concludes that plaintiff's lumbar spine has "[d]egenerative changes at L3/4, L4/5 and L5/S1 with mild disc bulges at L3/4 and L5/S1" and that her right shoulder has a "[b]ony impingement due to acromioclavicular hypertrophic spurring with associated supraspinatus tendinosis." Dr. Fisher attributes plaintiff's spine and right shoulder conditions to the pre-existing degenerative changes. He finds no radiographic evidence of traumatic or causally related injury to the affected areas and, [*6]in particular, notes the absence of disc herniations in plaintiff's lumbar spine.

Opposition and Motion to Strike

In opposition to defendants' motions, plaintiff submits the narrative report and affirmation of Dr. Gelin and the MRI reports of Drs. Shapiro and Azar, as reviewed above. Plaintiff also relies on her pre-trial deposition at which she testified that she could not raise her right hand after the accident and could not work in her family-run hot dog distribution business in her native Barbados. Plaintiff also testified that she had been forced to make some lifestyle changes as a result of her injuries. She specifically identified three of the activities that she could no longer perform after the accident: washing clothes by hand, washing a bathtub and lifting 30 to 40 pounds with her right hand.

Plaintiff further alleges that the court should deny defendants' summary judgment motions as sanctions for their failure to produce certain witnesses at depositions in accordance with the compliance conference order of May 20, 2008 and the preliminary conference order of October 25, 2007. By way of motion, plaintiffs seek to strike defendants' answers pursuant to CPLR 3126. In particular, Gordon, the driver of the automobile which struck plaintiff, has not appeared at a deposition and has not responded to plaintiffs' motion to strike his answer.

Discussion

Plaintiffs' Motion to Strike

Prior to discussing the issues raised by defendants' summary judgment motions, the court will dispose of plaintiffs' motion that relates to discovery and disclosure. Pursuant to CPLR 3126, plaintiffs seek to strike Gordon's answer based upon his failure to appear at a deposition by the deadlines imposed by the preliminary conference order and compliance conference order.[FN13]

CPLR 3126 (3) provides that a court may, in its discretion, strike the "pleadings or parts thereof" as a sanction against a party who "refuses to obey an order for disclosure." It is well settled that "the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with the discovery demands is willful, contumacious, or in bad faith" (Harris v City of New York, 211 AD2d 663, 664 [1995]). Such a showing must be affirmatively established by the moving party, whereupon the burden shifts to the nonmoving party to establish a reasonable excuse (see Palmenta v Columbia Univ., 266 AD2d 90, 91 [1999]). "Generally, the sanction should be commensurate with the nature and extent of the disobedience" (Christian v City of New York, 269 AD2d 135,137 [2000] [internal citation omitted]).

In the case before the court, plaintiffs have failed to meet their burden of establishing that Gordon's failure to appear at his deposition was "willful, contumacious or in bad faith." Neither the preliminary conference order nor the subsequent compliance conference order expressly provide that a failure to comply therewith will result in the imposition of sanctions under CPLR 3126. Moreover, plaintiffs fail to explain what efforts, if any, they undertook in their attempts to secure Gordon's deposition. Under the circumstances and given the strong public policy of this State that actions should be resolved on the merits whenever possible, the court hereby issues a conditional order granting plaintiffs' motion to the extent that Gordon is ordered to appear for a deposition before trial by plaintiffs within 60 days after service of a copy of this order with notice of entry, or his answer [*7]will thereafter be dismissed upon submission of proper papers and further order of the court.

Defendants' Motions for Summary Judgment

To maintain an action for personal injury, a plaintiff must establish that he or she has sustained a "serious injury," which is pertinently defined as follows: " Serious injury' means a personal injury which results in . . . 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" (Insurance Law § 5102 [d]).

Whether plaintiff sustained a "serious injury" presents a question of law for the court to determine first (see Licari v Elliott, 57 NY2d 230, 237 [1982]). Such determination occurs after defendants initially make a prima facie showing that plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and made no objective medical findings to support the plaintiff's claim (see Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 352 [2002]; Grossman v Wright, 268 AD2d 79, 83-84 [2000]). When a defendant's motion raises the issue of whether the plaintiff has sustained a "serious injury," the burden shifts to the plaintiff to produce sufficient prima facie evidence in admissible form to support the claim of "serious injury" or that there are triable issues of fact as to whether plaintiff suffered such injury (see Bryan v Brancato, 213 AD2d 577 [1995]).

Defendants submit the affirmed reports of Drs. Sharma and Fishman, who, upon examining plaintiff, conclude that plaintiff had normal ROM in her lumbar spine and cervical spine. Defendants also submit the affirmed reports of Dr. Fisher who reviewed plaintiff's MRI films and found only degenerative changes to her lumbar spine and cervical spine. Based on these submissions, the court finds that defendants have met their initial burden of making a prima facie showing that plaintiff did not sustain a serious injury (see Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]). Thus, the burden shifts to plaintiff to come forward with sufficient evidence to support her claim of "serious injury" or to raise a triable issue of fact with respect thereto (see Gaddy, 79 NY2d at 957). The "Permanent Consequential" and "Significant Limitation" Categories

To establish that the plaintiff suffered a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence, in addition to medical opinions, of the extent or degree of the limitation and its duration (see Booker v Miller, 258 AD2d 783, 784 [1999]; Burnett v Miller, 255 AD2d 541, 541 [1998]). Resolution of the issue of whether a serious injury was sustained 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 (see Toure, 98 NY2d at 353; Dufel v Green, 84 NY2d 795, 798 [1995]).

Plaintiff's experts raise a triable issue of fact regarding her claim of serious injury under the [*8]"permanent consequential" and "significant limitation" categories. Plaintiff submits proof contemporaneous with the accident showing the initial ROM restrictions in her lumbar spine and cervical spine, as documented by Dr. Gelin in his August 2006 examination of plaintiff.[FN14] Plaintiff also submits that her most recent examination by Dr. Gelin in November 2007 discloses that the initial ROM restrictions in her lumbar spine and cervical spine have not improved and, in fact, have remained the same. As set forth in his affirmation, Dr. Gelin performed objective medical tests, reviewed the imaging reports and concluded that plaintiff suffered a significant limitation of her use of her lumbar spine and cervical spine. Considered in the light most favorable to plaintiff, the evidence before the court indicates that her injuries are not "minor, mild or slight" (Licari, 57 NY2d at 236) to preclude a "serious injury" finding.

Furthermore, there is a question of fact as to the validity of some of the ROM measurements taken by defendants' experts, Drs. Sharma and Fishman. As summarized in the margin, their ROM measurements of plaintiff differed from each other by as much as between 10° - 20°.[FN15] These discrepancies create an issue of fact for a jury to determine (see Martinez v Pioneer Transp. Corp., 48 AD3d 306, 307 [2008]; Jackson v United Parcel Serv., 204 AD2d 605 [1994]).

Defendants contend that plaintiff has not adequately explained the gap in her treatment since her latest visit to Dr. Gelin in November 2007. They point out that plaintiff received only several months of physical therapy following the accident and that there is no indication that she has received any additional treatment since that time. A diagnosis of permanency, however, can obviate the need for further treatment, which is the case here based on Dr. Gelin's separate examinations of plaintiff in August 2006 and November 2007, which yielded the same results (see Pommells v Perez, 4 NY3d 566, 577 [2005]).

Defendants further contend that plaintiff's treating physician Dr. Gelin failed to respond to the findings of defendants' examining physicians who attributed plaintiff's alleged injuries to her degenerative conditions. In particular, defendants' orthopaedic surgeon Dr. Fishman and radiologist [*9]Dr. Fisher raised the issue of plaintiff's alleged pre-existing degenerative conditions. As stated by Dr. Fishman, plaintiff "sustained a cervical and lumbosacral spine strain/sprain and contusion to her upper and lower extremities superimposed on chronic degenerative ostheoarthritis" (emphasis added). However, Dr. Fishman, who first examined plaintiff after the accident, had no objective basis for determining the degree to which plaintiff's alleged ostheoarthritis had progressed prior to the accident to support his conclusion that her pre-existing condition was exacerbated by the accident. With respect to Dr. Fisher, his conclusion that plaintiff suffered from the degenerative conditions is contradicted by the reports of plaintiff's radiologists, Drs. Shapiro and Azar, who made no such findings. The extent of plaintiff's pre-existing conditions, if any, is again for a jury to determine.

In sum, the court finds that plaintiff has demonstrated the existence of triable issues of fact, and defendants' summary judgment motions should be denied to the extent that plaintiff relies on the "permanent consequential" and "significant limitation" categories of the "serious injury" definition.

The 90/180 Day Category

Plaintiff, however, fails to raise an inference that a "medically determined" injury or impairment prevented her from performing substantially all of her usual and customary daily activities for at least 90 of the first 180 days following the accident. At the time of the accident, plaintiff had no authorization to work in the United States and was unemployed. Her sole occupation was taking care of her daughter, the co-plaintiff herein, with whom she stayed on her visits to the United States from her native Barbardos. Plaintiff testified at her pre-trial deposition that, as a result of the accident, she would not be able to work in her family-run hot dog distribution business in Barbados. When questioned closely, however, she stated that such business consisted solely of the retail sales by one of her daughters of the hot dogs delivered to plaintiff's home by their manufacturer. Moreover, she stated at one point in her deposition that she had not worked in that business "for a few years" before the accident. Further, she identified only three activities that she could no longer perform after the accident washing clothes by hand, washing a bathtub and lifting 30-40 pounds with her right hand. Plaintiff does not put forth any evidence raising a genuine question of fact that she was unable to perform substantially all of her daily activities for not less than 90 of the first 180 days subsequent to the subject accident (see Johnson v Berger, 56 AD3d 725 [2008]). Thus, plaintiff's 90/180 claim is dismissed.

Summary

In conclusion, the court rules as follows:

(1) PTM's motion is granted only to the extent that plaintiff's 90/180 claim is dismissed and the motion is otherwise denied;

(2) Gordon's cross motion is granted only to the extent that plaintiff's 90/180 claim is dismissed and the cross motion is otherwise denied;

(3) Plaintiffs' motion for an order, pursuant to CPLR 3126, dismissing Gordon's answer based upon his failure to appear at an examination before trial pursuant to the preliminary conference order dated October 25, 2007 and the compliance conference order dated May 20, 2008 is granted only to the extent that Gordon is ordered to appear for a deposition before trial by plaintiffs within 60 days after service of a copy of this order with notice of entry, or his answer will thereafter be dismissed upon submission of proper papers and further order of the court; and

(4) The parties shall appear at a compliance conference at 9:30 a.m. on _________ __, 2009 [*10]to set the new note of issue due date and to resolve any issues relating to the outstanding discovery requests propounded by plaintiffs.

The foregoing constitutes the decision and order of the court.

E N T E R,

J.S.C. Footnotes

Footnote 1: The foregoing description is taken from Dr. Gelin's July 7, 2008 unaffirmed report which is incorporated into his July 16, 2008 affirmation.

Footnote 2: "Relating to a sheath, especially a tendon sheath," Stedman's, at 1970.

Footnote 3: "An aperture or perforation through a bone or a membranous structure," Stedman's, at 756.

Footnote 4: Dr. Shapiro's report of September 11, 2006 is attached to his affirmation of May 23, 2008.

Footnote 5: "[I]ntrinsic (scapulohumeral) m[uscle] of shoulder joint, the tendon of which contributes to the rotator cuff . . .," Stedman's Medical Dictionary, 28th ed (Stedman's), at 1255, 1873.

Footnote 6: "[A] plane synovial j[oint] between acromial end of the clavicle and the medial margin of the acromion . . .," Stedman's, at 1012. Acromion refers to the "lateral extension of the spine of the scapula," Stedman's, at 19. The "scapula" references "a large triangular flattened bone lying over the ribs, posteriorly on either side," Steadman's, at 1725. A synovial joint is a joint in which the opposing body surfaces are covered with a layer of cartilage within a joint cavity that contains synovial (or lubricating) fluid, lined with synovial membrane and reinforced by a fibrous capsule and ligaments so that some degree of free movement is possible, Stedman's, at 1016.

Footnote 7: Dr. Azar's report of September 3, 2006 is attached to his affirmation of May 23, 2008.

Footnote 8: "Disorder of the spinal nerve roots," Stedman's, at 1622.

Footnote 9: Plaintiff further alleges in her bill of particulars that she also sustained a "significant disfigurement" and a "permanent loss of use of a body organ, member, function or system." Since her opposition papers do not address these additional bases of liability, the court deems plaintiff to have abandoned them. In any event, plaintiff has submitted no evidence that she was disfigured. Nor has plaintiff established that she has suffered a loss of total use of any of her entire body part, which is the prerequisite to liability under the "permanent loss" category of Insurance Law § 5102 (d) (see Oberly v Bangs Ambulance, Inc., 96 NY2d 295, 299 [2001]).

Footnote 10: Defendants seek no relief against co-plaintiff Heather Auguste.

Footnote 11: Dr. Sharma stated that his review of plaintiff's medical records included an MRI report of her right shoulder of August 30, 2006, an MRI report of her lumbar spine of September 8, 2006, a report of Dr. Fisher of September 17, 2007, a report of Dr. El-Khoury of September 22, 2006, a report of Dr. Gelin of October 10, 2006 (which report has not been submitted to the court), and the Brookdale Hospital records.

Footnote 12: "[A] limp adopted so as to avoid pain on weight-bearing structures, characterized by a very short stance phase," Dorland's Medical Dictionary for Healthcare Consumers, http://www.mercksource.com [accessed Dec. 22, 2008].

Footnote 13:After PTM produced Lewis, the bus operator, for a deposition, that branch of plaintiffs' motion which was to strike PTM's answer became moot.

Footnote 14: Although Dr. Gelin's July 7, 2008 report is unaffirmed, he subsequently fully incorporates that report and its findings into his July 16, 2008 affirmation.

Footnote 15: Dr. Sharma measured plaintiff's lumbar spine/left and right lateral flexion at 25° (25° normal), while Dr. Fishman measured it at 40° (45° normal). The discrepancies in their respective measurements of the ROM of plaintiff's cervical spine were even more pronounced:

Plaintiff's

Cervical SpineDr. Sharma

(measured vs. baseline)Dr. Fishman

(measured vs. baseline) Flexion50/5040/45 Extension60/6040/45 Left and Right Rotation80/8065/70