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Insurance Law § 5102 (d…cont

In reply, defendants argue, among other things, that the opposition by plaintiff fails to prove by admissible objective evidence that she suffered a “serious injury”. Defendants also assert that plaintiff failed to rebut the doctor’s findings that the cervical disc pathology alleged by plaintiff is degenerative in nature and pre-existed the accident.

Based upon the record before it, the court finds that plaintiff’s submissions in opposition, failed to rebut defendants’ prima facie showing that she did not sustain a serious injury as a result of the May 15, 2003 accident. The court notes that although defendants’ radiologist stated that the MRI films taken of plaintiff’s cervical spine showed degenerative disc diseases which he opined pre-existed the subject accident, plaintiff’s treating doctor failed to address such findings in his report.

Further, although defendants’ experts noted that in 1999 plaintiff had a back fusion done for a compensation injury and that plaintiff had a prior disability and was not working at the time of the accident, plaintiff’s doctor failed to offer any evidence to show that the injury plaintiff sustained was caused by the subject accident rather than of her pre-existing condition. Nor has he even indicated that he was aware of plaintiff’s medical condition prior to the accident that gave rise to her present action. When a plaintiff’s treating physician fails to address the significance, or lack thereof, of a prior accident, the physician’s conclusions causally linking plaintiff’s current limitations to the subject accident are speculative and are not sufficient to rebut defendant’s prima facie showing of “lack of serious injury”. Moreover, where plaintiff’s treating doctor, apparently unaware of pre-existing injuries, does not address them, plaintiff’s medical proof is insufficient. Further, where there is a pre-existing injury that a defendant has established is relevant to the injury in litigation, the failure of plaintiff’s expert “to indicate an awareness of the condition” can lead to the conclusion that the expert’s opinion on causation is fatally flawed even within the context of a motion for summary judgment. Here, plaintiff’s medical proof is insufficient because there is no objective basis for concluding that plaintiff’s alleged injuries resulted from the subject accident and not the prior car accident.

Moreover, although plaintiff’s doctor opined that her injuries are permanent and that plaintiff still demonstrates significant restriction of motion in her cervical spine, he has failed to set forth the objective tests he performed to support his conclusion that plaintiff’s injuries are permanent in nature and that plaintiff suffers from significant restriction of motion in plaintiff’s cervical spine. “It is required that an expert’s affidavit identify the specific objective findings that serve as a predicate for the opinion rendered and also that an explanation be provided establishing a sufficient causal relationship between that objective finding and the bike injury, condition or limitation giving rise to the claim of serious injury, as well as between the injury and the accident itself.”.

In the absence of objective evidence establishing causation, plaintiff’s submissions are insufficient to demonstrate “serious injury” under consequential limitation of use or significant limitation of use categories.

Additionally, to the extent that the doctor’s affidavit properly relies on his own examination findings, there is a clear gap in treatment that is not explained. The doctor fails to offer an explanation for the more than two and a half year gap between his examination of plaintiff on May 11, 2005 and his most recent examination of the plaintiff on November 28, 2007, subsequent to the summary judgment motion. Further, the medical doctor failed to set forth the treatment, if any, that plaintiff received for her alleged injuries during that time.

Finally, plaintiff’s own self-serving affidavit is insufficient to prove that she sustained a medically determined injury or impairment which prevented her from performing all the material acts which constituted her usual customary activities for 90 of the 180 days immediately following the accident. Based on the record before the court, plaintiff was disabled at the time of the accident, she had spinal surgery done in May 1999 and suffered from chronic back pain.
Accordingly, based on the foregoing, plaintiff has failed to raise an issue of fact as to whether she sustained a serious injury as set forth in Insurance Law 5102 (d), as a result of the May 15, 2003 accident and as such defendants’ motion and cross-motion for summary judgment dismissing the plaintiff’s complaint are granted.

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