The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 19-37 Answering Papers 47-54 Reply 57 Decision/Order Defendant County of Suffolk (the County) moves this Court for an Order dismissing the complaint on the ground that the plaintiff bus passenger did not suffer a serious injury within the meaning of Insurance Law §5102 (d), and because the County is not liable for the incident that caused plaintiff’s fall. It is apparently undisputed that the plaintiff fell inside the County bus on October 7, 2017, when it stopped short in traffic. Plaintiff opposes the requested relief. In her Bill of Particulars, plaintiff claims to have suffered a “Concussion manifested by headaches, dizziness and memory disturbances; Cervical contusion; Left elbow pain.” In her Supplemental Bill of Particulars, plaintiff claims “Aggravation and/or exacerbation of dizziness.” The Threshold Branch of the Motion As a proponent of the summary judgment motion, the defendant herein has the initial burden of establishing that plaintiff 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 plaintiff (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 defendant’s 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]). 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 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]). 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]). In support of its motion, the County submits, inter alia, the pleadings, the bus driver’s and plaintiff’s testimony, various medical records concerning plaintiff’s treatment, and the affirmed report of its expert neurologist, Howard B. Reiser, M.D. Neither the Bill of Particulars, nor the Supplemental Bill allege any specific categories of injury provided for by Insurance Law §5102(d). Here, defendant has made a prima facie showing that plaintiff has not sustained any injuries under any of the categories set forth in Insurance Law §5102 (d); furthermore, the defendant has made a prima facie showing that the plaintiff’s alleged exacerbation of dizziness is not causally related to the subject accident. The defendant may rely upon the unsworn records of the injured plaintiffs’ treating medical care providers to demonstrate the lack of serious injury and/or causal relation (Elshaarawy v. U-Haul Co. of Mississippi, 72 Ad3d 878 [2d Dept 2010]). Based upon the submitted evidence, it is clear, and undisputed, that the plaintiff did not suffer death, dismemberment, significant disfigurement, fracture, loss of a fetus, or permanent loss of use of a body organ, member, function or system; accordingly, defendant’s motion for summary judgment is granted as to these categories of injury. The only remaining categories of injury that can reasonably be considered by this Court in the determination of this branch of the instant motion are 1) permanent consequential limitation of use of a body organ or member; 2) significant limitation of use of a body function or system; and 3) 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 (90/180 category). The emergency department records from the hospital where plaintiff was transported immediately after the accident establish that she was alert and oriented, was treated and released on October 7, 2017, and that she did not suffer any acute fractures, joint effusion, swelling, compression deformities, soft tissue abnormalities, or any acute radiographic osseous pathology in either her neck, chest or left elbow. It is also noted in the emergency department records that plaintiff had “[f]ull range of motion of upper and lower extremities. No joint tenderness/swelling.” When she was discharged, the records show that she was excused from work until October 10, 2017 but could return to “full physical activity as of October 10, 2017.” The CT scan of plaintiff’s head performed on October 16, 2017 revealed no evidence of any acute injury; rather, the impression by the doctor was stated to be “Nonspecific hypodensities which can be seen with migraines, small vessel ischemic disease, demyelinating disease.” The MRI study of plaintiff’s brain conducted on January 30, 2018 revealed “No acute findings, No acute infarction. No intracranial hemorrhage or mass effect.” The “increased signal intensity in the white matter [in] both cerebral hemispheres…[w]hile nonspecific, this is likely related to chronic ischemic demyelinization or migrainous changes.” Also on January 30, 2018, the results of the angiogram of the plaintiff’s brain were characterized as “unremarkable,” with “no evidence of acute or subacute ischemia.” Plaintiff’s other medical records submitted by defendant demonstrate plaintiff’s lengthy history of episodes of dizziness and lightheadedness related to hypertension (high blood pressure) and more than occasional non-compliance with a regimen of medication designed to reduce her blood pressure well prior to the date of the incident giving rise to this action (2008). Notably, there is no evidence that the injuries alleged in plaintiff’s Bill and Supplemental Bill of Particulars were caused by her fall on the County bus. Furthermore, although the submitted records contain notation that plaintiff states that she suffered a concussion on October 7, 2017 as a result of the subject incident, there is no statement in the medical records attributed to a medical provider establishing that plaintiff suffered a concussion, or any other acute injury on October 7, 2017. On its face, plaintiff’s claim of “left elbow pain,” is insufficient to constitute a “serious injury” within the meaning of the applicable law and combined with the radiological studies yielding negative results for any acute injury in this body part, that determination is warranted. Defendant’s expert neurologist, Dr. Reiser, examined the plaintiff on August 28, 2020, nearly three years after the date of the subject incident. In preparing his affirmed report, Dr. Reiser reviewed numerous medical records of the plaintiff’s treating providers both before and after the subject incident. Dr. Reiser also conducted a physical examination of the plaintiff that demonstrated normal results in plaintiff’s visual fields, cranial nerves, reflexes, and sensation. Cerebellar, sensory, and motor examinations were normal. Dr. Reiser’s impression is that plaintiff “presents with subjective posttraumatic symptoms including intermittent dizziness, tightness in the posterior neck and left elbow tenderness,” and that her “neurological examination reveals no objective deficit.” Dr. Reiser also noted plaintiff’s history of dizziness that predates the subject incident that occurred on October 7, 2017, high blood pressure, and “evidence of small vessel disease as would be expected in a patient who has hypertension, elevated cholesterol and abnormal glucose metabolism” unrelated to trauma. Dr. Reiser also noted that “[a]lthough there is an allegation of concussion, there is nothing in the medical records from the date of the incident to support this diagnosis. On 10/7/17, there was no reported cranial injury or alteration of consciousness.” Dr. Reiser concluded his report by stating, “[i]n summary, based on the history, today’s neurological examination and the review of current and prior medical records, I do not find evidence of an objective ongoing neurological disorder causally related to the incident of October 07, 2017.” Based upon the foregoing, the defendant County has established its prima facie entitlement to summary judgment as a matter of law as to the permanent consequential and significant limitation categories of injury. In addition, plaintiff’s own deposition testimony serves to establish that she did not suffer any permanent consequential or significant limitations as a result of the accident, or any injury under the 90/180 category (Kuperberg v. Montalbano, 72 AD3d 903 [2d Dept 2010]; Sanchez v. Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2d Dept 2008]). Plaintiff’s own Bill of Particulars claims only that she was “confined to bed from October 7, 2017, up to or about October 14, 2017, and confined to home thereafter up to or about October 25, 2017.” Plaintiff was employed at Bristal Assisted Living at the time of the incident and continued in that employment as a resident service aide until approximately April 2018. In September 2018, she became employed by the Brentwood School District as an aide to an autistic child, which involves watching him, taking him to the bathroom and feeding him. In total, plaintiff testified that she missed “almost a month” of work immediately after the accident, and then intermittent days since then. As of the time of her deposition on October 16, 2019, plaintiff complained only of dizziness, and had no complaints concerning her neck or left elbow. Aside from her claims that she cannot “do hard work anymore,” or wash the floor/clean, her testimony about activities that she can no longer do, or has trouble doing since the incident is vague and non-specific. She claims that she has trouble doing a physical job, but when asked if she has any trouble physically assisting the autistic child, she indicated that she does not experience any difficulties. Thus, plaintiff’s own deposition testimony is insufficient to demonstrate that she was prevented from performing substantially all of her 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]). Plaintiff is now required to come forward with viable, valid objective evidence to verify her complaints of dizziness, permanent injury, and incapacity (Farozes v. Kamran, 22 AD3d 458 [2d Dept 2005]). In opposition, plaintiff submits the affirmation of counsel, which is not evidence, and medical records from her treating physicians that are essentially the same as those submitted by the County. The respective medical records of Sonia Martinez, M.D., Adena Leder, D.O., Ronald Sticco, M.D., David Panasci, M.D., and Kevin Marcum, M.D. are each accompanied by affirmations from the doctors authenticating their respective records; however, and critically, none of the doctors’ affirmations causally relate the dizziness to the subject incident of October 7, 2017. The Court notes that by October 11, 2017, when plaintiff first saw Dr. Martinez, her left elbow pain had already improved. On that date, Dr. Martinez diagnosed the plaintiff with post-traumatic headache, neck pain, upper back pain and left elbow pain. None of these diagnoses of pain constitute serious injury (see Farozes, supra). In fact, none of the included records from Dr. Martinez relate the dizziness to the subject incident, but notes concerning plaintiff’s hypertension are apparent. Also apparent in the doctor’s notes ranging from October 11, 2017 through June 6, 2018 are that there was no swelling in plaintiff’s extremities, that her gait was normal, that range of motion in the left elbow was normal, and that the cranial nerves were normal bilaterally. Similarly, Dr. Leder’s records from January 16, 2018 and August 7, 2018 indicate no cranial nerve abnormalities, and normal bilateral motor strength. With regard to the complaint of dizziness, Dr. Leder noted in each of his submitted reports that plaintiff “is a 51[52] year old woman with dizziness of unclear etiology.” So, after all the testing and examination of the plaintiff, the cause of her episodes of dizziness cannot be determined, let alone causally related to the subject incident. Critically, plaintiff fails to address the medical records of Suffolk Heart Group submitted by the County documenting a June 2017 (approximately four months prior to the subject incident) “episode of dizziness and near syncope” that she experienced while she was at work. Plaintiff’s discussion of a potential injury to her lumbar spine as being related to right foot numbness is not an injury that was claimed in either her Bill of Particulars, or in her Supplemental Bill, and will not be considered by this Court in the determination of the instant motion. In any case, the MRI study of plaintiff’s lumbar spine revealed osteoarthritic changes, along with disc desiccation and mild foraminal narrowing. Moreover, an x-ray of the lumbar spine revealed mild lumbar degenerative changes, without a shred of evidence related to trauma. Thus, even if the Court were to consider an alleged injury to plaintiff’s lumbar spine, it is evident that any lumbar spine conditions are related to the aging process and not to trauma. Nowhere in the opposition papers does plaintiff explain the lack of acute injury that is established by her own medical records. Nor does the plaintiff submit the results of a recent examination controverting Dr. Reiser’s findings, and there is no evidence that any of her treating physicians restricted her from engaging in substantially all of her activities of daily living for at least 90 days during the 180 days immediately following the occurrence of the subject accident (Gaddy v. Eyler, 79 NY2d 955 [1992]). Accordingly, there is no causal relation of her complaints, chief among them being dizziness, to the October 7, 2017 incident, and no support for her claim of permanent injury. The statement made in opposition that “[p]laintiff still suffers from dizziness and neck pain, which at a minimum, was clearly exacerbated by subject fall” is rendered hollow and unsupported. Plaintiff’s claim that Dr. Reiser’s report “is not credible” is utterly unavailing. It is not necessary for Dr. Reiser to address the 90/180 category of injury since the plaintiff’s own testimony and her own medical records do not contain any evidence of a serious injury under this category (Licari v. Elliot, 57 NY2d 230, 238 [1982]). Furthermore, plaintiff’s complaint that Dr. Reiser did not perform an orthopedic examination addressed to plaintiff’s neck is spurious because more than ten months prior to Dr. Reiser’s August 28, 2020 examination, plaintiff testified at her deposition that she had no complaints other than dizziness. Finally, plaintiff’s accusation that Dr. Reiser is “prejudiced” because he is being paid to conduct an Independent Medical Examination (IME) is utterly unfounded and unsupported. Had plaintiff proffered a report from an expert opining as to the causality and permanence of the claimed injuries, that expert’s report would be subject to the same bald accusation, and the Court suspects that plaintiff would not then be making the accusation about Dr. Reiser. The plaintiff’s opposition is insufficient to raise a triable issue of fact as to the issue of serious injury within the meaning of Insurance Law §5102 (d). Accordingly, defendant’s summary judgment motion is granted in its entirety, and the complaint is hereby dismissed. Liability In view of this determination, the branch of the instant motion concerning the issue of liability need not be addressed because it is academic. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [X] NON-FINAL DISPOSITION [] Dated: April 14, 2022
