Marrero v Kovol

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Marrero v Kovol 2012 NY Slip Op 31462(U) May 15, 2012 Sup Ct, Nassau County Docket Number: 15044/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRIAL/IAS PART 31 NASSAU COUNTY MA A MARRRO Plaintiff - against - Index No. : 15044/10 Motion Seq. No. : 01 Motion Date: 12/28/11 CHRISTOPHER A KOVOL Defendant. The followine papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in O osition and Exhibits and Memorandum of Law Reply Affirmation Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendant moves , pursuant to CPLR 93212 and Aricle 51 of the Insurance Law of the State of New York , for an order granting him sumar judgment on the ground that plaintiff did not suffer a " serious 9 51 02( d). injur " in the subject accident as defined by New York State InsuranceLaw Plaintiff opposes the motion. The above entitled action stems from personal injuries allegedly sustained by plaintiff as a result of an automobile accident with defendant which occured on November 20 , 2009 , at approximately 7:51 p. , at or near the intersection of Guinea Woods Road and Jericho Turnpike , Old Westbur, County of Nassau , State of New York. The accident involved a 2008 Chrsler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by [* 2] defendant. Plaintiff commenced this action by the filing and service of a Sumons and Verified Complaint on or about July 21 , 2010. See Defendant' s Affirmation in Support Exhibit B. Issue was joined on or about September 7 , 2010. See Defendant's Affirmation in Support Exhibit C. Briefly, it is plaintiff's contention that the accident occured when defendant' s vehicle strck plaintiffs vehicle in the aforementioned intersection when, defendant' s vehicle , while speeding, made a left tu in the intersection and failed to yield the right of way. As a result of the collision , plaintiff claims that he sustained the following injures: extrded right lateral recess disc herniation occupying the right lateral recess behind the Tl 0 vertebral body, measuring roughly 6 mm; Tl 0- 11 superiorly Alight anterior displacement of the right aspect of the cord; Tll- 12 slight disc dessication and bulge; L2- 3 degenerative disc bulge and facet hypertophy resulting in rnoderate spinal stenosis; L3- 4 degenerative disc bulge and facet hypertrophy resulting in moderate spinal stenosis and right lateral recess and foraminal stenosis; L4- 5 degenerative disc bulge and facet hypertophy resulting in mild spinal and right foraminal stenosis; degenerative disc bulge and facet hypertrophy resulting in mild spinal and bilateral foraminal stenosis (worse on left side); L5- S 1 Pain in left side of neck and lower back; Plaintiff underwent injection to left trapezius performed on Januar Farkash , M. D.... 19 Bilateral lumbosacral radiculopathy; Prolonged right H reflex could reflect a S 1 root disturbance; Lower thoracic myelopathy; Sleep distubance. See Defendant's Affirmation in Support Exhibit D. 2010 by Arhur [* 3] It is well settled that the proponent of a motion for summar judgment must make a showing of entitlement to judgment as a matter oflaw by providing sufficient prima facie 3 N. Y.2d Fox Film Corp. Y.2d 320 395 , 165 N. Y.S. 2d 498 (1957); 508 N. Y.S. 2d 923 (1986); Y.S. 2d 595 (1980); Bhatti v. v. See Silman evidence to demonstrate the absence of material issues of fact. v. Zuckerman v. Alvarez Twentieth Century- Prospect Hospital, 68 49 N. Y.2d City of New York, Roche 140 AD.2d 660 528 N. 557 , 427 S.2d 1020 (2d Dept. 1988). To obtain summar judgment, the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the cour , as a matter of law, to direct judgment in the movant' s favor. See Friends of Animals, Inc. v. Associated Fur Mfrs. , Inc. 46 N. Y.2d 1065 416 N. Y.S.2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney Olan v. Farrell Lines If a sufficient 64 N. Inc., prima facie 2d 1092 489 N. See s affrmation. CPLR 9 3212 (b); 2d 884 (1985). showing is demonstrated , the burden then shifts to the non- moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumar See Zuckerman judgment and necessitates a trial. v. City of New York , supra. When considering a motion for sumar judgment , the fuction ofthe court is not to resolve issues but rather to determine if any such material issues of fact exist. supra. v. See Silman Twentieth Century- Fox Film Mere conclusions or unsubstantiated allegations are insuffcient to raise a triable issue. v. See Gilbert Frank Corp. Federal Ins. Co. 70 N. Y.2d 966 525 N. Y.S. 2d 793 (1988). Further , to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this tye of motion is not to resolve issues of fact See Barr or determine matters of credibility, but merely to determine whether such issues exist. Albany County, 50 N. 2d 247 , 428 N. Y.S.2d 665 (1980); Daliendo v. Johnson 147 AD. [* 4] 312 543 N. Y.S. 2d 987 (2d Dept. 1989). Within the paricular context of a threshold motion which seeks dismissal of a personal injur complaint , sustain a " serious v. the movant bears a specific burden of establishing that the plaintiff did not injur" as enumerated in Aricle 51 of the Insurance Law 9 5102(d). See Gaddy Eyler 79 N. Y.2d 955 , 582 N. Y.S.2d 990 (1992). Upon such a showing, it becomes incumbent upon the non-moving par to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a " serious injur. v. See Licari Ellott 57 N. Y.2d 230 455 Y.S. 2d 570 (1982). In support of a claim that the plaintiff has not sustained a serious injur, the defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn See Pagano reports of the plaintiff's examining physicians. v. 182 AD.2d 268 587 Kingsbury, Y.S. 2d 692 (2d Dept. 1992). However , unlike the movant's proof , unsworn reports of the plaintiff's examining doctors or chiropractors are not suffcient to defeat a motion for sumar judgment. See Grasso v. Angerami 79 N. Y.2d 813 , 580 N. 2d 178 (1991). Essentially, in order to satisfy the statutory serious injur threshold , requires objective proof of a plaintiff's injur. The Cour of Appeals in Toure Systems 98 N. Y.2d 345 , 746 N. Y.S.2d 865 (2002) stated that a plaintiffs the legislature v. Avis Rent-a- Car proof of injury must be supported by objective medical evidence , such as sworn MRI and CT scan tests. 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 A. D.2d 438 , 754 N. Y.S. 2d 7 (1 Dept. 2003). Conversely, even where there is ample proof of a plaintiff's injur, 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 interrpt between the accident and the claimed injur. See Pommells 4,. v. the chain of causation Perez 4 N. Y.3d 566 , 797 [* 5] Y.S.2d 380 (2005). Plaintiff claims that , as a consequence of the above described automobile accident with defendant , he has sustained serious injuries as defined in New York State Insurance Law 9 51 02( d) and which fall within the following statutory categories of injuries: 1) a permanent consequential limitation of use of a body organ or member; (Category 7) 2) a significant limitation of use of a body fuction or system; (Category 3) a medically determined injur 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 customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence ofthe injur or impairment.(Category 9). See Defendant's Affirmation in Support Exhibit D. To meet the threshold regarding significant limitation of use of a body fuction or permanent consequential limitation of a body fuction or system , 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 injur or condition. supra. statute. Eyler 79 N. v. See Gaddy d 955 582 N. Y.S. 2d 990 (1992); Licari Ellot v. A minor , mild or slight limitation wil be deemed insignificant within the meaning of the See Licari v. Ellot , supra. of use of a body organ or member" A claim raised under the "permanent consequential limitation or " significant limitation of use of a body fuction 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. Rent-a- Car Systems, supra. See Toure v. Avis In addition , an expert' s qualitative assessment of a plaintiff's condition is also probative , provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff's limitation to the normal fuction , purose and use of the affected body organ , member , function or system. Finally, to prevail under the " medically See id determined injur or impairment of a non- [* 6] permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence of the injur or impairment" category, a plaintiff must demonstrate through competent, objective proof a " medically determined injur or impairment of a non-permanent nature " (Insurance Law 9 5102(d)) " which would have caused the alleged limitations on the plaintiff's daily activities. See Monkv. Dupuis 287 AD. 2d 187 , 734 N. Y.S.2d 684 (3d Dept. 2001). A curtailment of the plaintiff's usual activities must be " to a great extent rather than some slight curailment." Licari v. Ellott , supra See at 236. Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies. See Gomez v. Ford Motor Credit Co. Misc.3d 900 810 N. Y.S. 2d 838 (Sup. Ct. , Bronx County, 2005). With these guidelines in mind , the Cour wil now tu to the merits of defendant' motion. In support of his motion, defendant submits the pleadings , plaintiff's Verified Bil Pariculars , the Januar 22 2004 report of Dr. Arthur Farkash , the report of plaintiff's lumbar spine MRI done on Februar 2 2004 , the Progress Notes and Reports of Dr. Arhur transcript of plaintiff's Examination Before Trial (" EBT" ) Farkash , the testimony, the affirmed report of Robert Israel , M. D., who performed an independent orthopedic examination of plaintiff on August 16 2011 and the affrmed reports of Alan B. Greenfield , M. , who reviewed plaintiff's lumbar spine MRI which was performed on December 10 , 2009 and plaintiff's thoracic spine MRI which was performed on Januar 12 , 2010. When moving for dismissal of a personal injury complaint , the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injur. supra. See Gaddy v. Eyler Within the scope of the movant's burden , defendant's medical expert must specify the objective tests upon which the stated medical opinions are based , and when rendering an opinion with respect to the plaintiff's range of motion , must compare any findings to those ranges of motion considered normal for the particular body par. See Gastaldi v. Chen 56 AD.3d 420 , 866 [* 7] Y.S.2d 750 (2d Dept. 2008); 2007); Nociforo v. Malave v. Basikov 45 AD. 3d 539 845 N. Penna 42 AD. 3d 514 840 N. 747 807 N. Y.S. 2d 658 (2d Dept. 2006); Mondi v. Meiheng Qu S.2d 396 (2d Dept. 2007); Doshna 12 AD.3d 578 , 785 N. Y.S. 2d 112 (2d Dept. 2004); Browdame 2d 415 (2d Dept. v. Candura 25 AD. Keahan 32 AD.3d 506 820 N. Y.S. 2d 625 (2d Dept. 2006). Defendant first argues that plaintiff's medical records establish that plaintiff had a pre- existing medical history of lower back pain that pre- dates and is unelated to the subject accident. Defendant submits that , on Janua 22 , 2004 , almost six years prior to the subject accident plaintiff went to Dr. Arhur Farkash with complaints of back pain from the proceeding year and See admitted that the condition originated five to six years earlier. Defendant's Affirmation in Support Exhibit E. Dr. Farkash diagnosed plaintiff with "recurent low back syndrome " and given the location of plaintiff's complaint of numbness , Dr. Farkash opined that a possible cause of plaintiff's described pain was that " he has meralgia paresthetica, which may be due to both diabetes and obesity. See id. Defendant next submits that the MRI of plaintiffs lumbar spine done on Februar 2 2004 , five years prior to the subject accident , demonstrates that plaintiff has pre-existing degeneration at multiple levels of his lumbar spine. See Defendant' s Affirmation in Support Exhibit F. Said MRI report states that the impression was " (m)ultilevel spondylosis , disc bulges most pronounced at L3/4 and L2/3. Right paracentral protrusion at L5/S 1. See id. Additionally, the MRI of plaintiff's lumbar spine done on May 2 2005 , four years prior to the subject accident, also demonstrated that plaintiff had pre-existing degeneration at multiple levels of his lumbar spine. The MRI was performed at the same facility as the 2004 MRI. Dr. Jeffrey C. Lee interPreted the 2005 MRI study and compared his findings to the 2004 MRI findings. Said MRI report states that the impression was " d)isc bulge and facet hypertrophy at the L2- 3 level resulting in moderate spinal stenosis. In addition there appears to be a small right paracentral disc fragment posterior to the L3 superior endplate. This is seen only on the sagittal [* 8] images and appears slightly larger when compared to the previous MRI of2- 04. Disc bulge and facet hypertrophy at the L3- 4level resulting in moderate spinal stenosis. There is also a small right lateral disc herniation with encroachment on the right lateral recess. This is unchanged from the previous exam. Mild spinal stenosis at the L4- 5 level. Disc bulge at the L5- S 1 level resulting in bilateral foraminal stenosis , worse on the left side. Right paracentral disc protrusion decreased from the previous exam. No significant thecal sac compression. See Defendant's Affirmation in Support Exhibit G. Defendant adds that the medical records of plaintiff's treating physician , Dr. Farkash fuher show that plaintiff had pre-existing limitations , lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject accident. See Defendant's Affrmation in Opposition Exhibits H- K. Dr. Robert Israel , a board certified ortopedist, reviewed plaintiff's medical records and conducted an examination of plaintiff on August 16 , 2011. See Defendant' s Affrmation in Support Exhibit M. Dr. Israel performed quantified and comparative range of motion tests on plaintiff's lumbar spine and right and left hip. Said range of motion testing, conducted by way of agoniometer , revealed no deviations from normal. Dr. Israel also performed other clinical tests and reported negative straight leg raising with no motor or sensory deficits and symmetrical deep tendon reflexes. Dr. Israel's diagnosis was " (r)esolved sprain of the lumbar spine. Resolved sprain of the right and left hip. Resolved sprain of the right and left leg. Based upon my examination from an orthopedic point-of-view, the claimant has no disability as a result of the accident ofrecord.... The claimant is capable of work activities and ADLs without restrictions. See id. Dr. Alan B. Greenfield , a radiologist , conducted an independent film review of the MRI of plaintiff's lumbar spine originally performed on December 10 , 2009. See Defendant' Affirmation in Support Exhibit N. With respect to his review of the lumbar spine MRI , Dr. Greenfield' s findings were " (n)ormallordosis. Diffuse degenerative disc disease , degenerative [* 9] sc bulging, and degenerative bone spur formation is seen along with multilevel degenerative hypertrophy of the ligamentum flavu and/or facet joints as indicated above. The constellation of the findings is clearly longstanding and degenerative in origin , is relatively extensive however , evolve 11/20109. (sic) over a period of years , and is entirely unelated to an accident occuring on Coexistent disc herniations are present toward the right side at L2- L3 and L3- L4 as well as centrally at L5- S 1. These can easily be explained on the basis of longstanding degenerative disc disease , culminating in degenerative disc herniations at these levels , and canot be attributed to the accident in question with any reasonable degree of medical certainty, paricularly based on the extensive multifocal degenerative findings at the involved levels as discussed above. Incidental note is made of an L4 vertebral hemangioma which is a benign entity, unelated to trauma including the accident in question. In sumar, there are no findings on this examination which can be attributed to an accident occurng on 11/20/09 , with any degree of medical certainty. See id. Dr. Greenfeld also conducted an independent fim review ofthe MRI of plaintiff's thoracic spine originally performed on Januar 12 2010. See Defendant's Affrmation in Support ExhibitN. With respect to his review of the thoracic spine MRI , Dr. Greenfield' s findings were d)iffuse degenerative disc disease is present atall thoracic disc levels and associated with multilevel degenerative bone spur to varing degrees from T9 distally. In addition, there is degenerative disc bulging at TI1- TI2 with flattening of the dural sac but without foraminal compromise. The constellation of the above noted findings is clearly longstanding and degenerative in origin , is relatively extensive , however , evolve over a period of years , and is 11120109. entirely unelated to an accident occuring on There is no disc herniation at any level and no fractue present. There are no findings on the study which can be attributed to an accident occuring on 11120109 with any degree of medical certainty. See id. With respect to plaintiff's 90/180 claim , defendant relies on plaintiff's testimony at his EBT , which indicated that , at the time of the subject accident , he worked for Trooper Foods and [* 10] do not miss any time from work after said accident. Based upon this evidence , the Cour finds that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law 9 51 02( d). The burden now shifts to plaintiff to come forward with evidence to overcome defendant' s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. See Pommells v. Perez, supra; Grossman v. Wright 268 AD. 2d 79 , 707 Y.S. 2d 233 (2d Dept. 2000). To support his burden , plaintiff submits the Affirmation of his treating physician, Dr. Farkash , plaintiff's EBT testimony and Dr. Farkash' s medical treatment records for plaintiff dated October 13 , 2009 thought Januar 19, 2010. Plaintiff submits that he was not under the care of any doctor at the time of the subject accident and , prior to said accident , the last time that he saw Dr. Farkash was on October 1 , 2009 at which time he had no new complaints. Additionally, plaintiff testified at his EBT that the subject accident initially caused some soreness of his back that tued into intense pain. Said pain radiated to his right hip and thigh and pain into his leg. These radiating pains were not present for over three years prior to the subject accident. Plaintiff argues that the subject accident clearly exacerbated his prior condition concernng his bulging disc and created a completely new injur the disc herniation at Tl 0- 11 and the disc bulge at TI1- 12. Plaintiff submits that he is stil seeing Dr. Farkas for treatment and that his condition is so severe that he has consulted with a neurosurgeon who recommended surgery. Plaintiff allegedly stopped physical therapy because no- fault benefits were terminated and he could not afford to pay for the physical therapy sessions. As mentioned , plaintiff submits an Affrmation from Dr. Farkash in support of his opposition. See Plaintiff's Affrmation in Opposition Exhibit B. Dr. Farkash confirms that his treatment of plaintiff for his lower back pain issues began as early as the late 1990s and that, in January 2004 , plaintiff returned to his care due to a recurence of said condition. It was in 2004 10- '' [* 11] that Dr. Farkas referred plaintiff for an MRI of his lumbar spine. Dr. Farkash states that plaintiff until he returned afer involvement in a 03/13/2006 was last seen for his back condition on motor vehicle accident in November 2009. " Dr. Farkash adds that " (o)n October 1 2009 , Mr. Marero retured to my care complaining of memory issues. There were no complaints concerning his previous back problem.... On December 8 , 2009 , the patient retured (sic) complaining oflower back pain. He was referred for a to my care thoracic and lumbar spine MRIs. The results of those MRIs as compared to the ones conducted prior to the accident evidenced new injuries. My earliest note following the November 20 2009 motor vehicle accident indicates The patient was doing well unti he was involved in a MV A on 11120/2009. He originally noted some soreness that tued into intense pain... He had radiating pain into his right hip and thigh and pain in his legs. ' I recently examined Mr. Marero on March 13 , 2012 , I found that he stil had complaints of lower back pain. In addition , he exhibited decreased range of motion and parasthesias. It is my opinion within a reasonable degree of medical certainty that Mr. Marero has sustained a significant limitation of use oft he lumbar spine since the motor vehicle accident of November 20 2009. I base this opinion on the history I obtained , my physical examination and objective findings including my review ofthe most recent MRI studies of Mr. Marero lumbar and thoracic spine dated December 10 the fact that Mr. Marero stil motor vehicle (sic) has these 2009 and Januar 12 2009 , respectively. Given lower back complaints more than two years after the without relief from medications and injections , his prognosis is poor and his injuries are permanent." With respect to the 90/180 claim , plaintiff submits that he testified at his EBT that , due to the alleged injuries sustained in the subject accident , he stopped coaching his children s softball team , he canot go on any rides with his children and when he bends down he is in tremendous pain. With respect to his employment , he testified that , while he did not lose any time from work following the subject accident , when he retued to work after said accident he was usually doing the work at his desk and that he is limited at work as he is prevented from working in his 11- [* 12] warehouse loading and unloading trucks. Plaintiff testified that he canot play golf anymore and has trouble doing his laundry since even bending down causes him pain. Prior to the subject accident , plaintiff had walked four miles a day and now he does not walk any distance. Finally, plaintiff claims that he is subject to significant pain when he stands or sits too long, walks too far Plaintiff's Affirmation in Opposition Exhibit B. See or even when he twists the wrong way. As previously stated , unlike the movant's proof , unsworn reports of the plaintiffs examining doctors or chiropractors are not sufficient to defeat a motion for summar judgment. v. See Grasso Angerami 79 N. Y.2d 813 , 580 N. Y.S. 2d 178 (1991). Therefore , the unswom reports contained in Exhbit C of plaintiff's defendant' s instant motion. See opposition papers are not suffcient to defeat Plaintiffs ' Affirmation in Opposition Exhibit C. Also as previously stated , under the no- fault statute , to meet the threshold significant limitation of use of a body fuction or system or permanent consequential limitation , the law requires that the limitation be more than minor, mild or slight and that the claim be supported by objectively measured medical proof based upon credible medical evidence of an See Licari medical injury or condition (emphasis added). Scheer v. Koubeck 70 N. Y.2d 678 v. Ellot , supra; Gaddy and quantifed v. Eyler , supra; 2d 788 (1987). 518 N. The Court notes that Dr. Farkash' s Affirmation (Plaintiff's Affirmation in Opposition Exhibit A) fails to set forth any objective findings contemporaneous with the subject accident , as well as fails to set forth any quantified range of motion findings based on a recent examination of plaintiff. Dr. Farkash provided no objective basis for any of his conclusions concerning his initial examination , nor for his most recent examination of plaintiff. Furhermore , in his Affirmation Dr. Farkash did not set forth the objective tests upon which he predicated his findings and conclusions and accordingly his Affirmation is insuffcient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use See Valdes categories of New York State Insurance Law 9 5102(d). 837 N. Y.S.2d 579 (2d Dept. 2007); Chiara v. v. Tim berger 41 A.D.3d 836 Dernago 70 A.D. 3d 746 , 894 N. Y.S.2d 12- 129 (2d [* 13] Dept. 2010); Mannix 2009); Smith v. Lisi' s Towing Service, Inc. 67 AD. 3d 977 888 N. v. Quicci 62 AD.3d 858 , 880 N. S.2d 773 (2d Dept. S.2d 652 (2d Dept. 2009). Failure to indicate which objective test was performed to measure the loss of range of motion is contrar to the Toure requirements of v. Avis Rent-a- Car Systems , supra. any pUrorted loss wortless Systems , supra; Powell v. and the Court Alade 31A. can not consider such. 3d 523 Recently the Cour of Appeals , in It renders the expert' s opinion as to Perl 818 N. Avis Rent-a- Car 2d 600 (2d Dept. 2006). Meher 18 N. Y.3d v. v. See Toure 208 , 936 N. S.2d 655 (2011), held that a quantitative assessment of a plaintiff's injuries does not have to be made during an initial examination and may instead be conducted much later , in connection with litigation. See id. However, the Affirmation of Dr. Farkash. In Perl Meher decision does not help plaintiff with respect to the Perl the Cour of Appeals reconciled the need to require both quantitative proof of a " serious See id v. injur" and " contemporaneous " evidence of a " serious injur. Perldecision however , did not eliminate the need to set forth any objective findings The contemporaneous with the subject accident , only their need to be expressed quantitatively, as such findings are critical to the issue of causation. Additionally, the Perl decision did not eliminate the need to set forth quantified range of motion findings based upon a recent examination. Absent any objective contemporaneous findings , plaintiff canot establish the duration or See cause of any limitations found by Dr. Farkash during his recent examination of plaintiff. Delarosa v. McLedo 74 AD. 3d 1012 904 N. S.2d 715 (2d Dept. 2010). With respect to plaintiff's 90/180 claim , nowhere does plaintiff claim that , as a result of his alleged injuries , he was " medically" impaired from performing any of his daily activities (Monk v. Dupuis 287 A. D.2d 187 , 734 N. Y.S.2d 684 (3d Dept. 2001)) or that he was curailed to a great extent rather than some slight curailment." v. Stark 299 AD. 2d 642 , 749 N. See Licari v. Ellott , supra. See also Sands 2d 334 (3d Dept. 2002). In light of these facts , this Court determines that plaintiff's injuries do not satisfy the " medically determined injury or impairment 13- ~~~~ [* 14] of a non-permanent natue which prevents the injured person from performing substantially all the material acts which constitute such person s usual and customar daily activities for not less than ninety days during the one hundred eighty days immediately following the occurence of the injur or impairment" category of Insurance Law. See New York State Insurance Law 95l02(d). Accordingly, defendant's motion , pursuant to CPLR 9 3212 and Aricle 51 of the Insurance Law of the State of New York , for an order granting him summar judgment and dismissing plaintiff's Verified Complaint is is hereby GRANTED. This constitutes the Decision and Order of this Cour. DENISE L. SHER, A. Dated: Mineola, New York May 15 2012 ENTERED 't 17 In'l NASSAU COUNTY CL 14- F\CE

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