The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 18-26 Answering Papers 28-51 Reply 53 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order Defendants move for summary judgment dismissal of the plaintiff’s bodily injury claims made in the complaint pursuant to CPLR 3212. After review and consideration of the submitted papers, defendants’ summary judgment motion concerning plaintiff’s bodily injury claims is granted.1 Plaintiff Monvil claims that as a result of the subject accident that occurred on January 29, 2015, he has suffered injuries to his cervical and thoracic spine, including herniations and bulging discs, radiculitis to his entire spine, headaches, pain, swelling, tenderness and limited range of motion in the areas delineated in his Bill of Particulars. Similarly, plaintiff Pierre alleges injuries to his lumbar spine, including bulging and herniated discs, radiculitis to his entire spine, headaches, pain, swelling, tenderness, and limited range of motion to all areas delineated in his Bill of Particulars. Both plaintiffs also claim loss of enjoyment of life. Plaintiffs specifically claim that they have sustained serious injury as defined in Insurance Law 5102 (d), under the following statutory categories of injury: 1) dismemberment; 2) significant disfigurement; 3) a fracture; 4) permanent loss of use of a body organ, member, function or system; 5) permanent consequential limitation of a body organ or member; 6) significant limitation of use of a body function or system, and 7) a medically determined injury or impairment of a non-permanent nature which prevented plaintiffs from performing substantially all of the material acts which constituted plaintiffs’ usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment (90/180 claim). As a proponent of the summary judgment motion, the defendants herein have the initial burden of establishing that plaintiffs did not sustain a causally related serious injury under the categories of injury claimed in the Bill of Particulars (see Toure v. Avis Rent a Car Sys., 98 NY2d 345, 352 [2002]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiffs(Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 [2d Dept 2005]). A defendant can satisfy the initial burden by relying on the sworn statements of defendants’ examining physician and plaintiff’s sworn testimony, or by the affirmed reports of plaintiff’s own examining physicians (Pagano v. Kingsbury, 182 AD2d 268, 270 [2d Dept 1992]). A defendant can demonstrate that plaintiff’s own medical evidence does not indicate that plaintiff suffered a serious injury and that the alleged injuries were not, in any event, causally related to the accident (Franchini v. Palmieri, 1 NY3d 536, 537 [2003]). Defendants’ medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part (Browdame v. Candura, 25 AD3d 747, 748 [2d Dept 2006]). The Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (Little v. Locoh, 71 AD3d 837 [2d Dept 2010]; Furrs v. Griffith, 43 AD3d 389 [2d Dept 2007]; Mejia v. DeRose, 35 Ad3d 407 [2d Dept 2006]). Thus, regardless of an interpretation of an MRI study, plaintiff must still exhibit physical limitations to sustain a claim of serious injury within the meaning of the Insurance Law. Furthermore, to qualify as a serious injury within the meaning of the statute, “permanent loss of use” must be total (Oberly v. Bangs Ambulance Inc., 96 NY2d 295, 299, [2001]). Here, defendants have made a prima facie showing that neither of the plaintiffs sustained any injuries under any of the categories claimed in their Bill of Particulars by submitting for the Court’s consideration the pleadings, the affirmed reports of Anthony Spataro, M.D. and plaintiffs’ own deposition transcripts. Initially, it is noted by this Court that there is no evidence whatsoever that the plaintiffs in this action suffered a dismemberment, fracture, or significant disfigurement. Accordingly, summary judgment dismissal of these categories of injury is granted, leaving this Court to consider plaintiffs’ claims of permanent loss of use, permanent consequential limitation of a body organ or member; significant limitation of use of a body function or system, and 90/180. Defendants’ orthopedic surgeon, Anthony Spataro, M.D., examined each of the plaintiffs on August 15, 2019, diagnosing each of their sprains and strains as resolved. According to Dr. Spataro’s affirmed reports, all range of motion measurements noted therein were obtained by the use of a goniometer and compared to the AMA Guidelines to the Evaluation of Permanent Impairment, 5th Edition. Plaintiff Monvil Dr. Spataro examined Mr. Monvil’s cervical, thoracic and lumbar spine areas, as well as Mr. Monvil’s shoulders. All range of motion measurements obtained revealed normal values in all of the areas examined. Dr. Spataro also noted that there was no spasm or tenderness in those areas. In addition, Dr. Spataro performed additional objective orthopedic tests (e.g., Neer’s, O’Brien, Yergason, Speed’s, Hawkins, Drop Arm) upon Mr. Monvil’s shoulders that also yielded negative results. Dr. Spataro’s neurological examination of Mr. Monvil’s upper and lower extremities revealed normal reflexes and muscle strength and no atrophy of the muscles. Cervical spine compression and straight leg raising tests demonstrated normal/negative results. Dr. Spataro noted that Mr. Monvil’s complaints of neck, mid-back and low back pain were not supported by objective findings, and that, although attributable to the subject accident, that his cervical, thoracic and lumbar spine sprains/strains are resolved. Plaintiff Pierre2 Mr. Pierre presented for independent medical examination complaining of neck, mid-back and low back pain although he told Dr. Spataro that initially he also experienced left shoulder pain. Dr. Spataro examined Mr. Pierre’s cervical, thoracic and lumbar spine areas, as well as Mr. Pierre’s shoulders, elbows, wrists, hands, hips, knees, ankles and feet. All range of motion values obtained from the measurements of these body parts were normal. In addition, no spasm, swelling or tenderness was noted by Dr. Spataro. A number of other specified orthopedic tests performed on Mr. Pierre’s knees, and shoulders yielded negative results. Mr. Pierre’s neurological testing, consisting of the examination of reflexes, muscle strength, light touch, and pin prick were all normal/negative. As per Dr. Spataro’s report, Mr. Pierre did not suffer any sensory loss or deficit in any part of his body. Dr. Spataro diagnosed Mr. Pierre’s cervical, thoracic, lumbar and left shoulder sprains, which were attributable to the subject accident, as resolved. Further according to Dr. Spataro, Mr. Pierre’s subjective complaints were not supported by the objective findings upon examination. Since plaintiffs did not exhibit any physical limitations during the independent orthopedic examination, there is no evidence of a serious injury in the categories of permanent loss of use, permanent consequential limitation of use, or significant limitation of use provided for by Insurance Law §5102 (d) regardless of the findings of any prior MRI reports (Little, supra); accordingly, defendants have established their prima facie entitlement to summary judgment as a matter of law as to these categories of injury. Defendants have also established their prima facie entitlement to summary judgment as to their 90/180 claims by submitting plaintiffs’ deposition transcripts (Kuperberg v. Montalbano, 72 AD3d 903 [2d Dept 2010]; Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2d Dept 2008]). According to their testimony, neither of the plaintiffs lost consciousness or were bleeding as a result of the accident. Police were called to the scene, but the officer did not inquire of the plaintiffs as to whether they wanted medical assistance, nor did plaintiffs request any such assistance. The airbags did not deploy, and the vehicle operated by Mr. Monvil was able to be driven home from the scene of the accident. Between the time of the accident and the next day when Mr. Monvil and Mr. Pierre went to a chiropractor, Dr. Priestly, they did not seek medical attention. When he saw the chiropractor, Mr. Monvil testified that he complained of pain in his neck, both shoulders and his lower back. According to Mr. Monvil, the chiropractor directed both of them to an MRI facility for radiological studies. Mr. Monvil stated that he treated with Dr. Priestly for approximately two and one-half years, initially on a weekly basis, then on a monthly basis and then every two months. He testified that he received chiropractic treatment and massages. Mr. Monvil said that he stopped treating with the chiropractor “toward the end of 2017.” Monvil stated that he and Mr. Pierre would go to Dr. Priestly together and that Mr. Pierre also stopped treating at the same time that he stopped treating. After the chiropractic treatment ended, the pain in his neck stopped according to Mr. Monvil’s testimony; the pain in his shoulders stopped after two years of treatment. Mr. Monvil denied any prior or subsequent accidents. On the day of the subject accident, he and Mr. Pierre were headed to work as caregivers for Brian’s Skilled Home Care. Each of the plaintiffs was employed full-time on the day of the accident/five days per week/40 hours per week. Mr. Monvil worked a full day on the day after the accident. Mr. Monvil testified that he did not miss any days from work due to the accident, which is contrary to his Bill of Particulars alleging that he was confined to bed for seven days and confined to home for three weeks following the accident. As of the date of his deposition on May 31, 2019, Mr. Monvil continued to be employed full-time at Brian’s Skilled Home Care. Mr. Pierre testified that he missed two days of work immediately after the accident, but that when he returned to work, he returned on a full-time basis and was able to fulfill all of the duties and responsibilities as a home health aide. As of the date of his deposition on May 31, 2019, he was still employed by Brian’s Skilled Home Care as a live-in aide three days per week, which totals just over 40 hours. Mr. Pierre’s testimony also contradicts the statements in his Bill of Particulars alleging confinement to bed for four days and to home for two weeks following the accident. Mr. Pierre testified that he treated with Dr. Priestly once a week for six months, then only once a month for one year and four months, and then once every two months for six months. Dr. Priestly treated Mr. Pierre’s lower back and neck. His treatment ended at the end of 2017, and according to Mr. Pierre, the pain in his neck and lower back had stopped. Further according to Mr. Pierre, Dr. Priestly communicated the results of an MRI study on his back by telling Mr. Pierre “that everything was, um, equal and I felt better.” Mr. Pierre denied any prior or subsequent accidents. Plaintiffs’ own respective deposition testimony is insufficient to demonstrate that either one of them was prevented from performing substantially all of their customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (Omar v. Goodman, 295 AD2d 413 [2d Dept 2002]; Lauretta v. County of Suffolk, 273 AD2d 204 [2d Dept 2000]). Plaintiffs are now required to come forward with viable, valid objective evidence to verify their complaints of pain, permanent injury and incapacity (Farozes v. Kamran, 22 AD3d 458 [2d Dept 2005]). In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law §5102(d) (see Toure, supra; Scheer v. Koubek, 70 NY2d 678, 679 [1987]; Munoz v. Hollingsworth, 18 AD3d 278, 279 [1st Dept 2005]). Furthermore, a plaintiff cannot defeat a motion for summary judgment, and successfully rebut a prima facie showing that she did not sustain a serious injury, merely by relying on documented subjective complaints of pain (Uddin v. Cooper, 32 AD3d 270, 271 [1st Dept 2006] lv to appeal denied 8 NY3d 808 [2001]). In opposition, plaintiffs submit, inter alia, their deposition transcripts, their own affidavits, the affirmations of the radiologist who interpreted the MRI studies performed on the plaintiffs (Robert Diamond, M.D.) and the affidavits of Walter Priestly, D.C. Regarding their respective affidavits sworn to on May 27, 2020, this Court notes that each plaintiff utilized the services of a Creole language interpreter at deposition. The affidavits submitted in opposition to this motion are drafted and sworn to entirely in English. The “affidavits” are not accompanied by a translator’s affidavit, which is required of foreign language witnesses. There is no clear indication of who, if anyone, translated the one-page affidavits to the plaintiffs, or the qualifications of that person to do so. The lack of a translator’s affidavit renders the plaintiffs’ English affidavits facially defective and inadmissible (CPLR §2101 [b]; Saavedra v. 64 Annfield Court Corp., 137 AD3d 771 [2d Dept 2016]; Raza v. Gunik, 129 AD3d 700 [2d Dept 2015]; Eustaquio v. 860 Cortlandt Holdings, Inc., 95 AD3d 548 [1st Dept 2012]; Reyes v. Arco Wentworth Management Corporation, 83 AD3d 47 [2d Dept 2011]; see also Ramos v. Bartis, 112 AD3d 804 [2d Dept 2013]; 1650 Realty Associates, LLC v. Sasoun, 52 Misc3d 139 [A] [App Term 2d Dept 2016]). Even if the Court were to consider the affidavits, the plaintiffs now claim that they suffer from pain in the affected areas, which is contrary to their respective deposition transcripts wherein they testified that the pain in the alleged affected areas had stopped when they concluded their treatments with Dr. Priestly. Moreover, the plaintiffs never testified that they experienced any difficulty in performing their jobs or performing any activities of daily living. Accordingly, plaintiffs’ affidavits are nothing short of self-serving, designed to raise feigned issues of fact to avoid the consequences of their respective deposition testimony (see Kudisch v. Grumpy Jack’s, Inc., 112 AD3d 788 [2d Dept 2013]; Garcia-Rosales v. Bais Rochel Resort, 100 AD3d 687 [2d Dept 2012]). The affirmations of Dr. Diamond regarding a March 17, 2015 cervical spine MRI performed on Mr. Monvil and a March 24, 2015 lumbar spine MRI performed on Mr. Michelet, do not causally relate any of the findings listed therein to the subject accident, and so are not sufficient to raise an issue of fact (see Collins v. Stone, 8 AD3d 321, 322 [2d Dept 2004]). Also, Dr. Diamond fails to mention in his affirmation pertaining to Mr. Pierre the disc hydration loss, a degenerative change, present at L4/5 and L5/S 1 noted in his own report. Dr. Diamond’s affirmation pertaining to Mr. Monvil likewise fails to mention the “diffuse cervical thoracic disc hydration loss” that he noted in his own report. The affidavits of Dr. Walter Priestly are also insufficient to raise a triable issue of fact. Dr. Priestly’s affirmations fail to state when he last treated either plaintiff, but according to the plaintiffs, they stopped treating with him at the end of 2017. Dr. Priestly merely states that he rendered treatment to these plaintiffs “for a substantial period of time,” but he does not detail the treatment or discuss the outcomes. As noted by this Court, the plaintiffs testified that their pain stopped when they stopped treating with Dr. Priestly. Further according to Dr. Priestly’s affidavits, the next time he saw either plaintiff was on August 21, 2019, approximately one year and eight months after they each last treated with him. Dr. Priestly has completely failed to adequately explain the lengthy gap in treatment from on or about the end of 2017 to the examination that he performed on August 21, 2019 (Pommels v. Perez, 4 NY3d 566 [2005]). Notably, Dr. Priestly does not state that he is presently treating either plaintiff as of August 21, 2019; rather, it appears that the plaintiffs presented to him on that date in order to obtain examination reports to include in opposition to the instant motion. Dr. Priestly’s affidavits also fail to state the objective means by which any of the measurements noted therein were obtained, or the standard to which the range-of-motion measurements were compared. Aside from having obtained these range-of-motion measurements, he apparently did not perform any other orthopedic tests upon the plaintiffs. Further, Dr. Priestly fails to address the diffuse cervical thoracic disc hydration loss present in Mr. Monvil’s cervical spine noted in Dr. Diamond’s MRI report, nor does Dr. Priestly address the disc hydration loss present in Mr. Pierre’s L4/5 and L5/S1 spine area noted in Dr. Diamond’s report. Glaringly absent is any evidence that plaintiffs suffered a medically determined injury or impairment of a non-permanent nature which prevented either one of them from performing substantially all of the material acts which constituted their usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury. Accordingly, Dr. Priestly’s conclusory statements that the MRI findings by Dr. Diamond and the range of motion limitations are causally related to the subject accident and that each of the plaintiffs suffers from a permanent disability are wholly unsupported by any competent, admissible evidence, and are in fact contradicted by the plaintiffs’ own deposition transcripts. Thus, Dr. Priestly’s affidavits fail to raise a triable issue of fact.3 Based upon the foregoing, this Court determines that plaintiffs’ opposition has failed to raise a triable issue of fact sufficient to defeat defendants’ summary judgment motion. Accordingly, defendants’ motion is granted, and the complaint is dismissed. The foregoing constitutes the Decision and Order of this Court. Dated: August 4, 2020
