The following numbered papers were read upon this motion: Notice of Motion/Order to Show Cause 12-13, 15-18 Answering Papers 20-22 Reply 24 Briefs: Plaintiff’s/Petitioner’s 14 Defendant’s/Respondent’s The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident that occurred on October 20, 2015 on Stonybrook Road in the Village of Lake Grove, County of Suffolk, State of New York. The defendants move this Court for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law5102(d) as a result of the subject accident. This Court grants the defendants’ motion. BACKGROUND As alleged, on October 20, 2015, at approximately 6:45 pm, the front of the vehicle operated by defendant Christopher Tomasky came into contact with the rear of the vehicle operated by plaintiff Como on Stonybrook Road. Defendant Tomasky operated that vehicle with the full knowledge and permission of the vehicle’s owner, defendant Leann H. Tomasky. Plaintiff commenced this action by filing a summons and complaint on November 16, 2017, seeking money damages for the serious injuries he claimed he sustained in the accident. The defendants’ joined issue on December 22, 2017. Plaintiff’s Bill of Particulars lists his injuries as traumatic disc injury to the cervical spine, traumatic disc injury to the thoracic spine, traumatic disc injury to the lumbar spine and a subluxation complex of the pelvis. Plaintiff alleges this caused a significant limitation in the use of a body function, a permanent consequential limitation of use of a body function and that he was prevented from performing substantially all of his usual and customary daily activities for 90 of the first 180 days following the accident (90/180 claim). DISCUSSION A. CPLR §3212 This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issue of fact (Andre v. Pomeroy, 35 NY2d 361 [1974]). Pursuant to CPLR §3212, when moving for summary judgment, a party must establish that the cause of the action or the defense “sufficiently [] warrant[s] the courts” directing judgment as a matter of law (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). To oppose a motion for summary judgment, a party must show the existence of a triable issue of fact (Id.). Evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion, herein the defendant (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). In support of their motion, defendants submit a copy of the pleadings, plaintiff’s entire deposition transcript, and the affirmed report of Dr. Scarpinato. B. Insurance Law §5102(d) Under Insurance Law §5102(d), serious injury is defined as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body function or system; 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 a 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.” The defendant has the initial burden of making a prima facie showing, through admissible evidence, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) (Gaddy v. Eyler, 79 NY2d 955 [1992]). A defendant who relies on the findings of their own witnesses in support of a motion for summary judgment based on the lack of serious injury must submit evidence in an admissible form such as affidavits or affirmations (Pagano v. Kingsbury, 182 AD2d 268 [2d Dept 1992]). A defendant can submit the plaintiff’s deposition testimony and the affirmed medical reports of the defendant’s own examining physician in order to satisfy the burden of establishing a prima facie case that the plaintiff did not sustain a serious injury (Moore v. Edison, 25 AD3d 672 [2d Dept 2006]). Once the defendant has made a prima facie showing, the burden then shifts to the plaintiff to produce sufficient admissible evidence that his injuries satisfied the meaning of serious injury, to defeat the defendant’s motion (see Gaddy v. Eyler, supra). In order to recover under the permanent consequential loss category, the limitation of use or function needs to be significant or consequential as it relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part (Dufel v. Green, 84 NY2d 795, 798 [1995]). A minor, mild, or slight limitation of use cannot satisfy the meaning of serious injury as defined by §5102(d) (Licari v. Elliott, 57 NY2d 230 [1982]). To satisfy the definition of serious injury under the 90/180 category a plaintiff must provide competent medical evidence to support their claim that they sustained a medically determined injury of a non-permanent nature which prevented them from performing their usual and customer activities for no less than 90 out of the 180 days following the subject accident (Sainte-Aime v. Suwai Ho, 274 AD2d 569 [2d Dept 2000]). Defendants, by submitting an affirmed report from their examining physician and through the use of the plaintiff’s deposition testimony, have established a prima facie case that plaintiff did not sustain a serious injury under any of the categories claimed in his Bill of Particulars (see Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]); Gaddy v. Eyler, supra). At defendants’ request, Dr. Scarpinato examined the plaintiff on January 25, 2019, approximately three years and two months after the subject accident. The doctor states the objective means by which she measured plaintiff’s range of motion and sets the standard for normal values as stated in the A.M.A “Guides to the Evaluation of Permanent Impairment”, fifth edition. Dr. Scarpinato physically examined the plaintiff and found normal range of motion of the cervical spine with no swelling, atrophy or sensorial defects. The report further noted the right shoulder has a normal range of motion with no signs of tenderness or swelling. Dr. Scarpinato found that the thoracolumbar spine revealed normal curvature, no swelling, and that the plaintiff can stand on toes and heels and squat without difficulty. Claimant had x-rays and MRIs performed as a result of the subject accident but no resulting surgery. The plaintiff had a previous work-related injury that resulted in elbow surgery. Dr. Scarpinato upon examination of the neck, back and shoulder found no positive objective findings despite plaintiff’s subjective complaint of neck and back tenderness. She concluded that the plaintiff had resolved sprains/strains of the cervical, thoracolumbar spine and right shoulder. She further concluded that the plaintiff does not have any applicable orthopedic disability, permanency or limitations noted upon her examination. The plaintiff testified that he had been involved in another motor vehicle accident five years before and had a worker’s compensation case related to his right elbow in the mid 2000′s. During his deposition he testified that he had aspiration of his baker’s cyst at the Northport Veteran’s Administration Hospital (VA) and was using a TENS unit for back pain prior to the accident. Plaintiff Como further testified that he started experiencing back pain about five or six years ago and he believes it was the result of his labor-intensive job; this pain never completely subsided. Additionally, he testified that he had previously been recommended for X-rays and MRIs for the back prior to the accident and reported back pain numbness and shoulder pain to his doctors at the VA. Also of note is that in accordance with the plaintiff’s testimony no air bags deployed and there was no glass shattered as a result of the impact. In fact, the car was operable afterwards. The plaintiff testified that when police arrived at the scene of the accident the plaintiff refused the offer of an ambulance despite the fact that he testified he was already in pain. The morning after the crash the plaintiff presented himself to the emergency room at Stonybrook Hospital and was released after taking “x-rays [that] said nothing was broke, have a nice day.” After his emergency room visit plaintiff sought the consultation of a chiropractor, Thomas Dow. Plaintiff further stated he did not have a complete resolution of right shoulder or back issues that existed prior to the subject accident. While plaintiff has received acupuncture treatment post-accident and had went to chiropractic treatments three times a week, at the time of the deposition there were no future appointments scheduled with Long Island Spine. Further, plaintiff testified that he does not take prescription or over the counter medication for pain. Plaintiff acknowledged that he experienced “arthritis on [his] right shoulder, [his] back from [his] neck down to [his] butt” prior to the subject accident and had been treated by VA doctors for it. Plaintiff testified that that prior pain had stopped him from working before the subject accident. Actually, the plaintiff complains that he presently is prevented from, inter alia, arm wrestling, motorcycle riding and horseback riding. These recreational activities are not the “usual” and “customary” acts the legislature had in mind when it enacted Insurance Law §5102(d). A plaintiff’s allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that he or she was prevented from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident (Omar v. Goodman, 295 AD2d 413 [2d Dept., 2002]; Lauretta v. County of Suffolk, 273 AD2d 204 [2d Dept., 2000]). Notably, plaintiff’s deposition testimony is devoid of any mention of an inability to perform his daily activities. Accordingly, the defendants have established through the presentation of the plaintiff’s own testimony that he did not sustain a medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts constituting plaintiff’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence (90/180 claim) (Kuperberg v. Montalbano, 72 AD3d 903 [2d Dept 2010]; Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2d Dept 2008]). Based on the affirmed report from Dr. Scarpinato and plaintiff’s deposition testimony, defendants have established, prima facie, that plaintiff did not sustain a serious injury as defined by §5102(d) under the permanent consequential limitation, significant limitation, or 90/180 categories of injury alleged in the Bill of Particulars (see Curry v. Velez, 243 AD2d 442 [2d Dept 1997]). Once defendants establish their prima facie case, the burden shifts to the plaintiff to come forward with evidence in admissible form to raise a triable issue of fact as to whether he sustained a serious injury as defined by §5102(d) (see Gaddy v. Eyler, supra). Unless an acceptable excuse for failure to comply is furnished, findings of a medical witness must be in the form of affidavits or affirmations to be admissible, which the plaintiff has met and therefore this Court considers Chiropractor Dow’s affidavit and annexed reports (Plaintiff’s Exhibit A &B) (see Pagano v. Kingsbury, supra). While a plaintiff should not be punished for failing to seek out a doctor who knows how to create a record for litigation immediately after being injured, a contemporaneous medical report is important for proving causation (see Perl v. Meher, 18 NY3d 208 [2011]). The chiropractor’s affidavit submitted by the plaintiff does not adequately address causation. Dr. Dow does not address the detailed pre-existing medical history of the plaintiff and failed to compare post and pre-accident x-rays and MRIs to see if the injuries remained unchanged. Also, Dr. Dow opines that the accident is a “substantial factor” in causing the plaintiff’s injuries, but fails to specifically causally relate the subject accident and eliminate plaintiff’s pre-existing conditions as a factor of plaintiff’s present complaints. In both the chiropractor’s affidavit and accompanying records there is no standard for the normal values. There is no objective standard provided either in the chiropractors’ affidavit or treatment reports in which to gauge the chiropractor’s findings for his Dual Inclinometry and Manual Muscle tests. Notably, the treatment reports contain no recommendation from any medical provider to refrain from engaging in any activities at all. Bulging or herniated discs must be accompanied by objective medical evidence of the alleged physical limitations resulting from the disc injury and their duration in order to support a claim of serious injury (see Pommells v. Perez, 4 NY3d 566 [2005]; Yakubov v. CG Trans Corp., 30 AD3d 509 [2d Dept 2006]; Kearse v. NYC Transit Auth., 16 AD3d 45 [2d Dept 2005]; Diaz v. Turner, 306 AD2d 241 [2d Dept 2003]). The chiropractor’s affidavit submitted by plaintiff makes out no objective medical evidence addressing any physical limitations resulting from the alleged aggravation or exacerbation of the previously existing herniations. Without objective medical evidence of the plaintiff’s limitations, the mere existence of herniated discs cannot support her serious injury claim (see Pommells v. Perez, supra). Where a plaintiff alleging serious injury has preexisting conditions, the plaintiff must address or contest the existence of such conditions and the role they played in the alleged injury (see Alvarez v. NYLL Mgmt. Ltd., 120 AD3d 1043 [1st Dept 2014]). The affirmed medical report submitted by the defendants states the plaintiff had preexisting conditions. The chiropractor’s affidavit submitted by the plaintiff acknowledge the plaintiff’s preexisting condition, however, it fails to address how the preexisting condition could have affected the plaintiff’s alleged injuries. As such, plaintiff’s evidence is insufficient to show a triable of fact and therefore summary judgment is proper (see Camilo v. Villa Livery Corp., 118 AD3d 586 [1st Dept 2014]). CONCLUSION The defendants made a prima facie showing that the plaintiff did not sustain a serious injury under Insurance Law §5102(d) through affirmed medical reports and the plaintiff’s deposition testimony. After establishing that plaintiff did not sustain a permanent consequential limitation of use of a body function, a significant limitation of use of a body function, and that he was not prevented from performing substantially all of his usual and customary daily activities for 90 of the first 180 days following the accident, defendant shifted the burden to plaintiff to raise a triable issue of fact (see Gaddy v. Eyler, supra). The plaintiff has failed to raise a triable issue of fact as to whether he sustained a serious injury under §5102(d). Therefore, the defendants’ motion for summary judgment dismissing the complaint is granted. Upon the foregoing; it is ORDERED that defendants’ motion seeking summary judgment pursuant to CPLR §3212 dismissing the complaint on the basis that plaintiff Jay Como did not sustain a serious injury as defined by Insurance Law §5102(d) is granted as detailed above; and it is further, ORDERED that plaintiff’s complaint is dismissed as against the defendant; and it is further, ORDERED that counsel for defendants is hereby directed to serve a copy of this decision and order with notice of entry on counsel for plaintiff. The foregoing constituted the decision of this Court. Dated: August 7, 2019 Riverhead, NY FINAL DISPOSITION [X] NON-FINAL DISPOSITION []
