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CPLR §§ 321 land 3212 and Article 51…. cont

Finally, to prevail under the “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” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” “which would have caused the alleged limitations on the plaintiff’s daily activities.” A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

Based upon this evidence, the Court finds that the defendants have established a prima facie case, that the plaintiff did not sustain serious personal injury within the meaning of New York State Insurance Law § 5102(d). The doctor examined the plaintiff, performed quantified and comparative range of motion tests on plaintiff’s cervical spine, thoracic spine, lumbar spine, right shoulder, right elbow, right wrist/hand and right ankle/foot. The doctor performed the range of motion tests on plaintiff using an orthopedic goniometer. The results of the tests indicated no deviations from normal. He concluded, “Cervical spine sprain/strain-resolved. Thoracic spine sprain/strain-resolved. Lumbar spine sprain/strain-resolved. Right shoulder sprain/strain-resolved. Right elbow sprain/strain-resolved. Right wrist/hand sprain/strain-resolved. Right ankle/foot sprain/strain-resolved. There is no evidence of an orthopedic disability.”

Defendants also argue that, in addition to the negative findings of the doctor, plaintiff’s own medical records disprove any claim of lumbar radiculopathy citing the October 8, 2009 North Shore Hospital Department of Radiology MRI report which defendants claim show that plaintiff exhibited pre-existing disc desiccation and only mild disc bulges and herniations. Additionally, defendants submit that plaintiff’s own physician, conducted nerve conduction studies of plaintiff’s upper and lower extremities and found only normal results. Also, all examined muscles showed no evidence of electrical instability (as indicated objectively in the EMG scoring table). Defendants contend that this disproves plaintiff’s allegations of neurological disabilities, including radioculopathy. Thus, all claims of neurological disabilities within plaintiff’s Bill of Particulars are without merit.

Defendants submit that none of plaintiff s alleged injuries constitute “total” loss of use, necessary in order to establish that any of her injuries fall within the category regarding permanent loss of a body organ, member, function or system. Defendants also submit that plaintiff cannot establish a serious injury under the significant disfigurement category as plaintiff has not identified any disfigurement to her body in her Bill of Particulars and she has not suffered from any alleged visible injury.

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