DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is ORDERED that Plaintiff’s Motion #002 seeking summary judgment on the issue of a “serious injury” as defined by 5102 of the Insurance Law is hereby denied. Procedural History This matter was commenced with the filing of a Summons and Complaint on February 24, 2020. Plaintiff alleges that on June 30, 2019, the Defendant Eileen Ruggiero negligently drove her motor vehicle into the rear of the motor vehicle of the Plaintiff, causing injuries. On May 4, 2020, Plaintiff moved for summary judgment on the issue of liability. On August 10, 2020, this Court granted the motion for summary judgment, finding no triable issues of fact regarding the cause of the accident of June 30, 2019. After discovery was completed, the matter was certified ready for trial on September 10, 2020. A Note of Issue was filed by the Plaintiff on September 17, 2020. A Jury Demand was filed by the Defendants on September 28, 2020. Motion #002 seeking summary judgment on the issue of a “serious injury” as defined by 5102 of the Insurance Law was filed by the Plaintiff on January 14, 2021. Plaintiff’s Motion According to the Plaintiff, on June 30, 2019, she was operating her vehicle on Forest Hill Road, on Staten Island, New York, and she was struck in the rear by the Defendant. On July 8, 2019, the Plaintiff began treatment for neck and shoulder pain with Dr. Adolph B. Meyer of Staten Island Medical Rehabilitation P.C. The Plaintiff’s initial physical examination revealed bilateral rotator cuff syndrome, bilateral hip sprain/strain, cervical radiculopathy and lumbar radiculopathy. Upon those findings, the Plaintiff was referred for MRIs to determine whether there were any tears. Beginning on July 17, 2019, the Plaintiff began chiropractic treatment with South Shore Chiropractic for neck, upper back and shoulder pain and lower back pain with radiation into the hips. On July 22, 2019, the Plaintiff began treatment with Dr. Charles DeMarco, an orthopedist. Per Dr. DeMarco’s records, the Plaintiff presented with pain and dysfunction in the right elbow, pain, clicking and popping of the left hip. The pain was described as “persistent and debilitating.” On August 2, 2019, the Plaintiff had an MRI done of the right elbow and left hip. The elbow MRI revealed a partial tear of the bicep tendon. The MRI of the left hip revealed an anterior acetabular labral tear. On September 26, 2019, the Plaintiff began treatment with Dr. Montalbano of Regional Orthopedics. On December 17, 2019, the Plaintiff had an MRI of the cervical spine which revealed disc herniations at C4-C5, C5-C6 and disc bulge at C6-C7. On December 17, 2019, an MRI of the lumbar spine revealed herniation and disc bulge. On February 11, 2020 and July 28, 2020, the Plaintiff underwent injections for the left hip. In a follow-up MRI of the left hip on August 6, 2020, results revealed frayed abductor insertions, bursitis, and “mild degenerative hip osteoarthropathy.” The Plaintiff claims that she was a part owner of a restaurant and as part of her usual work activities, she would work three days a week, for about 9-10 hours per day. She testified that after the accident, she only worked for 4 hours per day. She claimed that she was unable to work, clean her home, do laundry, walk or exercise. Plaintiff claims that she suffered and sustained 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. Defendant’s Opposition Defendant first opposes Plaintiff’s motion as untimely. The Note of Issue was e-filed on September 17, 2020. Governor Cuomo’s Executive Order 202.48 extending all deadlines was rescinded on November 4, 2020. Plaintiff should have filed the summary judgment motion on or before January 4, 2021, but the motion was filed on January 14, 2021. Defendant is seeking the denial of the motion pursuant to Insurance Law 5102(d), specifically what is commonly referred to as the 90/180 rule. Defendant claims that the Plaintiff failed at prima facie that she suffered a serious injury and that the injury was causally related to the accident. According to Defendant’s review of the cervical spine MRI by Dr. Jeffrey Warhit, the findings were pre-existing and not a result of the accident of June 30, 2019. Dr. Warhit concluded that the herniations and bulges were degenerative and there was no evidence of a traumatic injury. Defendant’s expert, Dr. Warhit, disagrees with the findings made by Plaintiffs radiologist, as Plaintiff’s expert failed to indicate the degenerative changes. Discussion A “serious injury must be 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 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 substantial all of the material acts which constitutes 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.” See Grossman v. Wright, 268 AD2d 79, 83 [2d Dept. 2000] citing Insurance Law 5102[d]. As the proponent of a summary judgment motion, the Plaintiff bears the burden of establishing, as a matter of law, that they suffered a serious injury and that the injury was causally related to the accident. See Elshaarawy v. U-Haul Co. of Mississippi, 72 AD3d 878, 881 [2d Dept. 2010]. A Plaintiff’s subjective claim of pain and limitation of motion must be “sustained by verified objective medical findings.” See Grossman v. Wright, 268 AD2d 79, 84 [2d Dept. 2000]. In this case, the reports proffered by the Plaintiff establish that the Plaintiff suffered an injury, however, the expert opinions failed to address the Plaintiff’s prior and subsequent injuries or degenerative conditions. See Pommells v. Perez, 4 NY3d 566 [2005]. As the Defendant’s expert reported degenerative conditions, a question of fact has been raised by the Defendant as to whether the Plaintiff suffered a serious injury and whether the injury was causally related to the accident. Conclusion In summary, for the reasons detailed above and set forth on the record, it is hereby ORDERED that Plaintiff’s Motion #002 seeking summary judgment on the issue of a “serious injury” as defined by 5102 of the Insurance Law is hereby denied, as a question of fact has been raised regarding the Plaintiff’s prior and degenerative condition. This constitutes the decision and order of the Court. Dated: April 19, 2021
