Lawrence v Pelkey

[*1] Lawrence v Pelkey 2010 NY Slip Op 50761(U) [27 Misc 3d 1215(A)] Decided on April 28, 2010 Supreme Court, Columbia County McGrath, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 28, 2010
Supreme Court, Columbia County

Eric B. Lawrence, Plaitiff,

against

Kayla R. Pelkey and Joshua M. Pelkey, Defendants.



6208/09



BASCH & KEEGAN, LLP

Derek J. Spada, Esq.

For the Plaintiff

KAPLAN, HANSON, MCCARTHY, ADAMS, FINDER & FISHBEIN

Paul Hanson, Esq.

For the Defendants

Patrick J. McGrath, J.

The defendants Kayla and Joshua Pelkey move this Court for an order granting summary judgment, pursuant to CPLR § 3212 and dismissing the Plaintiff Eric B. Lawrence's complaint for failure to show that a serious injury has been suffered, as per Article 51 of the New York State Insurance Law. The Plaintiff opposes the motion in its entirety, and defendants submit a Reply.

This action arises from a motor vehicle accident that occurred on September 20, 2007. The defendant driver made a left turn in front of Mr. Lawrence's car and caused a head-on collision. Mr. Lawrence's car was totaled, and he was taken by ambulance to Columbia Memorial Hospital. At the time of the collision, Mr. Lawrence was a freelance musician and was also employed at a private school in Vermont and Williams College in Massachusetts. Mr. Lawrence commuted to Vermont and Massachusetts one day per week. He also gave private lessons outside of the school and college, [*2]and worked an average of five days per week as a teacher and saxophone player leading up to the subject collision. Mr. Lawrence felt that he was at the height of his career leading up to the 9/20/07 collision. He was playing with Levon Helm (former member of The Band), and released two of his own albums within the year before the collision. Mr. Lawrence's freelance work was quite steady leading up to the collision. He performed in festivals in the United States, Europe and South America, and also made television and radio appearances.

Mr. Lawrence claims that he was able to play the saxophone for hours at a time without any pain or discomfort in his right shoulder, arm and/or right upper extremity during the years leading up to the collision. As a result of the collision, Mr. Lawrence claims that his life has been significantly altered. He states that he now has persistent pain in his neck and right shoulder that travels down into the right arm and causes numbness in his fingers. Mr. Lawrence claims that he had pain and difficulty playing the saxophone and flute. At some point after the accident, without giving an exact date, he resigned from his teaching position at the school in Vermont because he was no longer able to instruct his students. He often taught by example and was no longer able to do so because it was difficult for him to hold and play the saxophone. Mr. Lawrence kept his job at Williams College because his students there are more advanced and he rarely needs to teach by example.

Mr. Lawrence states that he has declined much of the freelance work that has been offered to him because he cannot perform for a prolonged period of time. Mr. Lawrence continues to play with Levon Helm at weekly concerts, although doing so aggravates his injuries. Mr. Lawrence also occasionally travels with Levon Helm and his band when they go on the road but doing so aggravates Mr. Lawrence's neck, right arm and shoulder. Mr. Lawrence purchased a second set of instruments solely to be used for traveling and the second set of instruments is transported by band members so that Mr. Lawrence does not have to carry any equipment with him.

Mr. Lawrence states that he has difficulty doing most daily household activities due to his injuries from the collision. Specifically, he has difficulty doing any activity that requires him to push, pull or reach above his head. He has difficulty cleaning his house, grocery shopping, doing laundry, cooking and performing other basic daily activities. He states that he cannot do any strenuous physical activities, such as lifting weights as he did frequently before this collision.

Mr. Lawrence states that the collision significantly aggravated and exacerbated his right shoulder and arm injuries, and caused new injuries to his neck. His neck was not symptomatic prior to the 9/20/07 collision, nor did he experience radiating pain traveling through his right upper extremity prior to 9/20/07. He also states (at paragraph 6 of his affidavit) that he "stopped treating for [his] right shoulder and arm more than one year before the subject collision." However, this statement appears to be contradicted by plaintiff's records from Sojourn Clinic, specifically, the record of 4/18/07 (five months prior to the accident), where plaintiff reports that his "shoulder is as bad as ever."

On or about April 27, 2009, the Plaintiffs commenced this action by filing a summons and [*3]complaint. Issue was joined by service of the Defendants' verified Answer and demands. On or about June 10, 2009 and December 22, 2009, the Plaintiffs served a verified bill of particulars and a supplemental bill of particulars, alleging that Mr. Lawrence sustained a serious injury claiming to meet both or either of two categories, namely the permanent consequential limitation of use and/or the "90 out of 180" category.

On a motion for summary judgment the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law. Frank Corp. v Federal Ins. Co., 70 NY2d 966 (1988). The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact. Id. at 967. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. Id. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. Barr v. County of Albany, 50 NY2d 247 (1980).

New York's "No-Fault Law" precludes litigation of personal injury claims arising out of automobile accidents in the absence of "serious injury." Ins Law § 5104[a]; Pommells v. Perez, 4 NY3d 566, 571 (2005). This term is statutorily defined based upon the nature, severity and duration of the physical symptoms and disabilities of the plaintiff. Id. The injury allegedly sustained must be, as a matter of fact, proven to be causally related to the accident giving rise to the lawsuit. See Pommells v. Perez, supra at 575.

In a personal injury action resulting from a motor vehicle accident, a summary judgment motion seeking to dismiss requires that a defendant establish a prima facie case that the plaintiff did not sustain a serious injury. Ins Law § 5102 (d); Gaddy v. Eyler, 79 NY2d 955 (1992). If defendant meets this initial burden, it becomes incumbent on the plaintiff to come forward with sufficient evidence in admissible form to demonstrate the existence of a question of fact on the issue. Gaddy v. Eyler, supra. The court must then decide whether the plaintiff has established a prima facie case of sustaining serious injury. Licari v. Elliott, 57 NY2d 230 (1983).

In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians. See Pagano v. Kingsbury, 182 AD2d 268 (2d Dept. 1992). However, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Grasso v. Angerami, 79 NY2d 813 (1991).

In order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. A plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI. Toure v. Avis Rent-a-Car Systems, 98 NY2d 345 (2002). However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. See Gonzalez v. Vasquez, 301 AD2d 438 (1st Dept. 2003). [*4]

Even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury. Pommells v. Perez, supra.

Insurance Law § 5102 (d) defines serious injury to mean, inter alia, a personal injury which results in the "permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. Gaddy v. Eyler, 79 NY2d 955 (1992); Licari v. Elliott, 57 NY2d 230 (1982). A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute (Licari v. Elliott, supra). A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion, in order to prove the extent or degree of the physical limitation. See Toure v. Avis, supra.

To prevail under the "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" category ("90 out of 180"), a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" "which would have caused the alleged limitations on the plaintiff's daily activities." Ins. Law 5102[d]; Monk v. Dupuis, 287 AD2d 187, 191 (3d Dept. 2001). A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment." Licari v. Elliott, supra at 236).

With these guidelines in mind, the Court will turn to the merits of the Defendant's motion. Defendants submit, among other things, copies of the pleadings, the verified bill of particulars and supplemental bill of particulars, unaffirmed medical records from Sojourns Health Clinic, as well as other treating physicians. These reports include the Pre-Hospital Care and Emergency Room reports, neurological reports, an unaffirmed MRI of the cervical spine and brain, unaffirmed medical records from defendant's chiropractor. Defendants also include the sworn report of plaintiff's expert Dr. Luis Mendoza, Jr., MD, as well as the results from No Fault medical exams, including a sworn neurology exam, a sworn chiropractic report and a sworn accupuncture report. [*5]

Defendants refer to plaintiff's records from Sojourn Health Clinic, and argue that Plaintiff has been suffering with the very same right shoulder/arm issues that he complains of now for years. Starting with a 2/18/03 entry, it is noted Plaintiff fell on ice in the previous December. He fractured his leg and injured his right side. Defendants state that from that point forward, almost every entry up to the car accident concerns itself with some complaint of an upper right extremity issue with corresponding treatment. Defendants highlight the alleged pre-existing condition, complaints and limitations, including complaints of limitations in performing musically and daily activities. The records reveal the following:

1.On the 2/18/03 visit the Plaintiff was complaining that his right thumb feels "out."

2.On 2/25/03 the right thumb is treated again and notations are made to the sacroiliac, lumbar, thoracic and cervical spine (SI, L, T and C).

3.On 2/26/03 Plaintiff's back went into spasms and was painful from the previous day's visit.

4.On 5/22/03 Plaintiff needed adjustments for his "ongoing problems" of right arm, right thumb, right little finger and right elbow.

6.On 7/2/03, plaintiff noted that the pain in his right arm "has not changed." He also noted that pain in his left arm.

7.On 8/6/03, plaintiff noted that he "still had problem with pain in right arm." At this visit, he noted that at the end of December (2002), he "slipped and fell, he landed hard on right arm." It is noted that plaintiff visited his brother, a chiropractor, who suggested that there was a problem with the wrist.

8.On 8/11/03, plaintiff complained of right and left elbow pain.

9.On 8/19/03, plaintiff complained of right elbow pain and lower back pain.

10.On 8/29/03, plaintiff again complained of right elbow and lower back pain.

11.On the 10/15/03 visit, it is noted Plaintiff fell on ice in December 2002 and landed on his right arm and wrist. The pain initially started at the "back right thumb", then moved up to the wrist and elbow. Plaintiff noted that driving, saxophone playing, and computer use all irritated his pain. Also sleeping on the right shoulder causes him to wake in pain. It is noted that this pain occurred "before accident."

(These are same complaints presently being made.)

12.On 10/23/03 it was noted Plaintiff drove 250 miles since last visit (8 days prior) and initially felt no pain for a few days. But upon presentation the pain was "as bad as ever now," and his left arm was now "bothering him a little." His finger felt fatigued.

13.On the 10/29/03 visit, the pain returned after a weekend of building a barn. His thumb was sore.

14.On 11/19/03 Plaintiff was showing "slow improvement", playing much less, "but when it does flare up its as bad as ever." He felt pain at the right elbow.

15.On 11/25/03, plaintiff again reported that the pain "as bad as ever."

16.On 12/3/03, plaintiff reported "a bad week for pain." It was noted Plaintiff's brother is a chiropractor and the brother had found Plaintiff's wrist is "fixed" with no mobility. Sleeping on the right shoulder would still cause "intense pain", "numbing pain up and down entire arm." Sciatic pain on the right side was also reported.

17.On 1/21/03, it was noted that plaintiff was wearing some kind of devise, which was [*6]removed. He noted that while driving, "his back pain radiated to right testicle." He reported that his pain was "bad yesterday - not constant or nagging."

18.On 2/4/03, plaintiff reported "pain started up yesterday, less pain, not constant." He also reported pain when driving.

19.On 3/5/04 Plaintiff reported his arm was pretty good, but if he slept on his right side he would have pain in shoulder. He also reported lower back pain occasionally.

20.On 8/9/04, plaintiff complained of shoulder pain after sleeping or driving. He describes it as a "shooting pain" to his wrist and elbow.

21.On 8/23/04, plaintiff reported that his right hand was hurting after doing "lots of yard work" over the weekend.

22.On 8/30/04, plaintiff reported "heavy driving", which caused pain "up into right shoulder."

23.On 9/8/04 he reported that he threw his shoulder out, and that he had pain "down arm and lower back." He also needed to wake up at night to roll over. He reported the pain "occasionally popping up here and there."

24.On 2/14/05, he reports occasional pain in his right elbow and lower back. The possibility of a "broken right index finger" is noted.

25.On 8/10/05, he reports that "last week, all pain back." He drove 700-800 miles, his arm was "bad" and he felt "fatigue in hands."

26.At his next visit (the Court cannot discern the exact date, it may be 10/7/05 or 11/7/05), plaintiff reports that he "wrenched right side of back playing last night" and that he drove "500 miles yesterday."

27.On 12/29/05 he reported "lots of trouble with right arm, especially shoulder." He also notes trouble sleeping.

28.On 1/5/06 he reported a dislocated right middle finger and "shoulder stiff upon waking."

29.On 3/23/06, plaintiff reports "constant pain in the right shoulder", and that he could not sleep.

30.In March and April 2006 Plaintiff began Physical Therapy, as well as received adjustments from his chiropractic brother.

31.On 4/28/06 range of motion deficits were noted as well as strength loss. The findings were consistent with impingement aggravated by poor posture.

32.On June 7, 2006, it is noted that Plaintiff has arthritis in his right shoulder (calcification) from the fall on ice four years ago.

33.On 6/21/06 Plaintiff hyper extended his right arm behind him, which caused his arm to "freeze in hyper extension." Plaintiff reported that he felt the "entire pain spectrum, shoulder, bicep, etc."

34.On 1/3/07, plaintiff notes "a difficult week physically", "shoulder and back hurting."

35.On 4/18/07 it was reported that for the last couple of weeks, plaintiff's "shoulder as bad as ever." Not constant pain, but "very intense when it happens."

36.After the accident, on 9/28/07, it is noted that plaintiff has a "history of right shoulder pain associated with a...fall in 02 - had MRI - slight calcification in shoulder joint."

Dr. Pickard's neurological report of October 23, 2007 notes that plaintiff denied any prior problems with headache or neck pain, and that his past medical history was only remarkable for [*7]appendicitis in 2006. He states that plaintiff's neck shows "some limitation of lateral rotation" and that plaintiff has "tenderness and some mild spasm of the trapezius, more so on the right." It is noted that plaintiff has "good range of motion of the right shoulder." Strength in the upper extremities was "normal". Dr. Pickard's impression was that plaintiff had a Cervical sprain with symptoms suggesting a right C5-6 radiculopathy, and post traumatic headaches. He recommended plaintiff take Ibuprofen, and notes that plaintiff may continue work, but that he should avoid persistent prolonged use of the saxophone.

Plaintiff had an MRI of the cervical spine, which revealed that there is "multilevel overall mild degenerative change in the cervical spine. This consists of multilevel degenerative disc and endplate change." The MRI of the brain was interpreted as normal.

Plaintiff's records from Kotorac Chiropractic start in May 2008. On his health History, he notes a broken leg from 2002, but not any issues with his shoulder or hand. On the intake form, Plaintiff noted that he was generally healthy but had "occasional neck, right shoulder and arm pain, and knee pain." There appears to be 11 treatments up to May 2009. Included in the records is a letter from Dr. Kotorac to Plaintiff's counsel, dated October 6, 2008, which states that plaintiff came to him complaining of symptoms in his cervico-thoracic spine that travels into his right shoulder and arm at times radiating down to his right hand. The letter goes on to state that an exam on May 16, 2008 revealed positive cervical compression in right lateral flexion. Eden's positive on the right. Active and latent myofascial trigger points were present in the cervico-thoracic musculature and the right shoulder. A diagnosis of right scalenis anticus syndrome, thoracic segmental dysfunction (at T1-first rib) cervical segmental dysfunction and myofascitis was determined." Certain treatment was also recommended.

Dr. Joseph Schneider provided an independent neurology exam on plaintiff on December 10, 2007. He noted that plaintiff was complaining of headaches, cervical pain, and sensory symptoms in the right forearm, consisting of numbness and tingling in the right hand. Plaintiff also noted shooting pain of brief duration originating in the occipital region, extending to the vertex. The pain depends on the movement of the head. Dr. Schneider noted that plaintiff was never in an automobile accident before, that he had a kidney stone a number of years ago, and had an appendectomy in 2006. Dr. Schneider notes that plaintiff had "no pre-existing condition or systemic illness which would aggravate his current symptoms or would interfere with his recovery." The report states, in degrees, what plaintiff's range of motion is compared to a normal range of motion, and noted the range of motion of all movements was "normal." Under "Impressions", Dr. Schneider notes that plaintiff has "post-traumatic headache; occipital neuropathy, bilateral, more on the right, secondary to contusion; Neuropathy of the right lateral antebrachial cutaneous nerve, secondary to contusion; Median neuropathy on the right, involving the distal aspect of the nerve (carpal tunnel syndrome), mild, in all probability, secondary to a traction injury; The cervical pain is consistent with a strain." He called plaintiff's condition "mild." He notes that if the history of the accident is correct, there was a cause and effect relationship between the original complaints and the reported accident. No mention is made of the plaintiff's 2002 fall, or the symptoms or treatment he had sought from the Sojourn Clinic prior to 2007. [*8]

Dr. Robert E. Costello provides a Chiropractic IME report, dated December 17, 2007. Dr. Costello noted a reduced range of motion in the cervical spine, but normal range of motion in the thoracolumbar spine. He noted normal muscle strength in all muscle groups of the upper extremities, with normal sensation. He did note that the right shoulder was tender and exhibited a decreased range of motion. His diagnosis was a cervical spine sprain/strain, and right shoulder pain. He states that after reviewing medical records and taking "a complete medical history from Mr. Lawrence" and performing his exam, "it is apparent that the injuries sustained and the accident reported on September 20, 2007 are causally related." He notes that the right shoulder symptoms were outside his area of expertise.

Plaintiff also had an acupuncture report, but as plaintiff concedes, a licensed acupuncturist is not a physician, and has been found incompetent to render a medical opinion. Scoot v. Basdeo, 6 Misc 3d 1020A (Civil Ct., Bronx County 2004).

Plaintiff was also examined by Dr. Luis A. Mendoza, Jr., M.D. His sworn report is dated December 18, 2009. He notes that he examined plaintiff, and took a history. As part of that history, he notes "fractured right leg 02 when he slipped on ice in his driveway; resolved." His examination revealed a limited range of motion, as well as spasms in the neck. Dr. Mendoza also noted a restricted range of motion to the thoracic/lumbar spine, as well as tenderness. As to the upper extremities, Dr. Mendoza noted pain and spasms to the right trapezius muscle, as well as spasms. He states that he reviewed all of the records cited herein, but makes no mention of any records from the Sojourn Clinic. Under the section of his report entitled "Permanency and Causality", he states that "as a direct result of the motor vehicle accident Mr. Lawrence was involved in on 9/20/07" he has a "24% loss of range of motion to the neck and a 23% loss of range of motion to the back." He also has a "20% loss of strength to the upper right extremity." Dr. Mendoza notes that plaintiff has bulging disks, that these findings were documented in an MRI. He does not state in his findings that the MRI report noted that these were classified as "multilevel overall mild degenerative change in the cervical spine." He then discusses how these injuries, caused from the accident, have affected Mr. Lawrence's daily activities.

Mr. Lawrence had an EMG study conducted on February 3, 2010. The purpose of the EMG was to assess the extent and/or rule out acute and chronic nerve root dysfunction, myelopathy, and myopathy or nerve injury and the nature of muscles involved. The EMG revealed right C6/7 cervical radiculopathy and evidence of a sensorimotor median neuropathy at the carpal tunnel bilaterally. He was advised to continue with physical therapy and then seek nerve blocks/epidural injections if physical therapy does not improve his condition. There is no assessment regarding causation.

In a letter dated March 23, 2010, James Kotorac, DC, writes to plaintiff's counsel, concerning his care of the plaintiff. Dr. Kotorac treated him for neck pain that traveled into his right shoulder, right arm and sometimes into the right hand. These symptoms began following the 9/20/07 collision. Mr. Lawrence also reported difficulty playing music for more than 10 minutes at his initial examination on 5/16/08. Dr. Kotorac found a positive cervical compression sign with right lateral [*9]bending. Eden's sign was also positive on the right. Furthermore, Mr. Lawrence had active and latent myofascial trigger points with palpation to the trapezius, levator scapula, rhombroid's, supraspinatus, infraspinatus, teres minor, subscapularis, latismus dorsi, posterior neck muscles, splenius cervicis, scalenes and pectoralius. Also, Mr. Lawrence's cervicothoracic hypomobility involved the first rib bilaterally. Dr. Kotorac's working diagnosis was right scalene anticus, thoracic segmental disfunction, cervical segmental disfunction and myofascitis. On 9/8/08, Mr. Lawrence returned complaining of right multidermatome numbness and pain after playing his saxophone. Dr. Kotorac provided ultrasound, and spray and stretch technique during his treatments in September of 2008. Each treatment provided temporary relief, but Dr. Kotorac noted that plaintiff's playing and traveling consistently irritated Mr. Lawrence's injuries. In November of 2008, plaintiff reported exacerbation of the pain in his right arm and that he had also been experiencing bilateral hand numbness. On December 29, 2008, Mr. Lawrence reported that his symptoms were aggravated. On examination, the results were similar to the findings obtained in Dr. Kotorac's initial examination, which included compression of the cervical spine, tension on the right brachial plexis, and activation of myofascial trigger points. Also, the cervico-thoracic first rib articulation on the right was subluxed superiorally, which was reduced by manipulation.

Dr. Kotorac reviewed Mr. Lawrence's EMG study from 2/3/10 which revealed a C6 and C7 radiculopathy. These neurological levels controlled wrist flexion and extension, as well as finger extension. The EMG also showed evidence of senso motor medial neuropathy at the carpal tunnel bilaterally which is primarily a C8 innervation that controls finger flexion.

Dr. Kotorac concluded that Mr. Lawrence's cervical discs are causing compression/irritation of the nerves that are necessary for the dexterity to play musical instruments. In addition to the direct compression of the nerve root level, myofascial components along the way are causing nerve compression/irritation, as well, particularly in the splenius cervicis and scalene. This is affecting the first rib articulation and the brachial plexus of nerves at this level as they course down the right arm. Dr. Kotorac further concluded that Mr. Lawrence has a permanent partial disability. The damage to his cervical spine and the existing neurological symptoms can worsen over time. Surgical intervention may be required. Mr. Lawrence will likely require regular treatment, probably twice per week, to continue functioning at his current level.

On the issue of causation, plaintiff argues that although Mr. Lawrence was "physically imperfect" prior to the collision, his injuries were substantially aggravated and the collision caused new injuries. Plaintiff's counsel notes that a "plaintiff is entitled to recover for any (increased) disability or pain resulting from such aggravation." (PJI 2:282). He states that the defense has not ruled out that Mr. Lawrence's pre-existing condition was not aggravated to a point that it would meet the serious injury threshold. This misstates the respective burdens of the parties on this motion.

"Persuasive proof" of a pre-existing condition can defeat, on a motion for summary judgment, a plaintiff's case for serious injury under the no-fault law. Pommells v. Perez, supra at 575-576. Defendant has provided the court with extensive medical history and documentation from the Sojourn Clinic, regarding plaintiff's pain in his right arm (including elbow), right shoulder, right [*10]hand, right wrist, and back, as well as range of motion deficits and strength loss. It was noted at that time that extensive driving, saxophone playing and computer use all exacerbated his pain. The emergency room reports, as well as the Sojourn notes, establish that prior to the accident, plaintiff had calcification in the right shoulder joint.

Defendants have met their initial burden and have provided "persuasive proof" establishing a lack of causation, and thus, Plaintiff is now required to demonstrate the existence of a triable issue of fact with respect to the cause of his claimed physical impairment, or alleged aggravation of a prior existing condition. Id. The record reveals that plaintiff has failed to show the existence of any triable issue of causation as to the alleged injuries to plaintiff's back, right arm, shoulder, wrist and hand, as there is no evidence that any physician was made aware of plaintiff's lengthy prior medical history at the Soujorn Clinic. Dr. Mendoza notes that any issues plaintiff had as a result of his 2002 fall were "resolved", but he "failed to explain his opinion that the preexisting conditions had resolved... or to cite any objective evidence to support that opinion." Franchini v. Palmieri, 307 AD2d 1056, 1058 (3d Dept. 2003). It is unclear how Dr. Mendoza could come to this conclusion, when the medical records from Sojourn Clinic note that plaintiff, as late as April 18, 2007 (five months prior to the accident) reported that for weeks, his "right shoulder was as bad as ever." "Under these circumstances, his opinion that plaintiff's condition is causally related to the ... accident is both speculative and conclusory." Id. citing Lorthe v. Adeyeye, 306 AD2d 252 (2003); Pajda v. Pedone, 303 AD2d 729, 730 (2003); Ginty v. MacNamara, 300 AD2d 624, 625 (2002); Kallicharan v. Sooknanan, 282 AD2d 573, 574 (2001).

As there is no evidence that any treating or examining physicians were aware of plaintiff's pre-existing condition, there is also no proof that plaintiff's pre-existing problems in his arm, hand and back were exacerbated by the accident. Thus, plaintiff has failed to come forth with evidence countering the defendants' proof of lack of causation as to these injuries.

As to the head and neck injuries, plaintiff claims they were asymptomatic prior to the collision. In Plaintiff's deposition transcript, he admitted to prior chiropractic adjustments for his neck with Cyntia Moore. He stated that he never had a traumatic neck injury. He initially denied neck pain when he went to the Emergency Room, but complained of some stiffness when the emergency collar was removed. As to the headaches, Dr. Pickard stated they were post-traumatic headaches, and prescribed Ibuprofen. He also noted a muscle spasm in the neck. Plaintiff's brain MRI was normal. Dr. Kotorac's records indicate that plaintiff complained of occasional neck pain. He also made complaints of neck pain and headaches to Dr. Mendoza. Dr. Mendoza states that Mr. Lawrence sustained a concussion in the motor vehicle accident that led to post concussion syndrome, which has persisted since the collision. Dr. Mendoza found that plaintiff had a 24% loss of range of motion to the neck, and states that there is "an excellent probability" that he will require a surgical procedure to the neck in the future. The pain in his neck requires over the counter medication.

Plaintiff claims that he has suffered two types of serious injuries under the Insurance Law. The first is the permanent consequential limitation of use. In order to satisfy this standard, a

plaintiff must present medical proof containing " objective, quantitative evidence with respect to [*11]diminished range of motion or a qualitative assessment comparing plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system.'" Saleh v. Bryant, 49 AD3d 991 (3d Dept. 2008); Felton v. Kelly, 44 AD3d 1217 (3d Dept. 2007); John v. Engel, 2 AD3d 1027 (3d Dept. 2003).

The second claimed injury is the "90 out of 180" injury, which must also be demonstrated by objective evidence of a medically determined injury or impairment of a non-permanent nature. Toure v. Avis Rent A Car Systems, supra. Plaintiff must demonstrate that his injuries prevented him from performing substantially all of the material acts which constitute his 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. Plaintiff must show that "he has been curtailed from performing his usual activities to a greater extent rather than some slight curtailment." Licari v. Elliot, supra, at 536; Gaddy v. Eyler, 79 NY2d 955 (1992).

The only evidence plaintiff provides regarding his headaches are his own subjective complaints of pain. His brain MRI was normal. There is no objective medical proof that requires a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part, and therefore, the headaches cannot constitute a serious injury under either standard.

With respect to claimed neck injuries, plaintiff's supplemental bill of particulars notes that the accident caused aggravation to a "pre-existing asymptomatic degenerative changes in the neck." The Court of Appeals in Pommells v. Perez , supra, made clear that a latent degenerative disc condition is a preexisting condition.

Where an individual with degenerative spinal changes is asymptomatic until the time of an accident, he or she may have sustained a "serious injury." In Talcott v. Zurenda, 48 AD3d 989 (3d Dept. 2008), plaintiff's orthopedist opined that the previously asymptomatic degenerative condition was aggravated by the trauma of the automobile accident, and it was possible that the patient could have otherwise remained asymptomatic for the rest of his life. In Schaming v. Saunders Constr. Carriers, 172 AD2d 957 (3d Dept. 1991), the plaintiff's orthopedic surgeon opined that plaintiff's pain was a result of the accident, causing a previously asymptomatic congenital deformity to become symptomatic and resulting in a permanent disability. There is no proof provided by any medical professional here that plaintiff's pre-existing degenerative condition was aggravated by the accident, or that he would not have felt neck pain as a result of this condition, regardless if the accident had occurred. Dr. Mendoza's report clearly states that he has read the MRI report, which classifies the spinal changes as "degenerative." Dr. Mendoza states that plaintiff may need surgery in the future, but does not state that surgery would not have been necessary anyway. While there is qualitative evidence of a loss of range of motion in the neck from Dr. Mendoza, he does not state that the accident exacerbated the pre-existing condition. See Valentin v. Pomilla, 59 AD3d 184 (1st Dept. 2009).

For the same reasons, plaintiff's claims under the permanent consequential limitation of use [*12]and the "90 out of 180" must fail for lack of proof of causation. The Court would also note, as Defendants point out, that Drs. Mendoza and Kotorac have no basis to offer any opinion in the "90 out of 180" category as neither saw plaintiff within the first 180 days following the accident.

Accordingly, defendants' motion for summary judgment is granted.

This shall constitute the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is being returned to the attorneys for the defendants. All original supporting documentation is being filed with the County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.

SO ORDERED AND ADJUDGED.

ENTER.

Dated:April 28, 2010

Hudson, New York

Patrick J. McGrath

Supreme Court Justice