With respect to plaintiff’s 90/180 claim, defendants rely on the testimony of the plaintiff which indicates there was virtually no diminution in the plaintiff’s ability to work. Plaintiff returned to work nineteen days after the accident with no change in her job duties.
The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. In opposition to defendants’ motion, plaintiff contends that defendants have not meet their burden of proof in establishing that plaintiff’s injuries do not meet the definition of any of the nine categories defined as serious in the insurance law. Plaintiff argues that defendants’ independent medical expert, failed to perform a complete set of range of motion testing in all plains of motion on plaintiff’s injured area, specifically that the doctor did not conduct any range of motion testing in the areas of either left or right lumbar rotation and therefore his opinion that plaintiff has a normal range of motion is suspect.
The Court notes that plaintiff denied any history of a prior car accident or injury during her examination with the doctor as she had also done during her examination with Dr. Miller. The Court also notes that his diagnosis was “Cervical Spine sprain/strain-resolved. Thoracic spine sprain/strain-resolved. Lumbar spine sprain/strain-resolved. There is no evidence of a neurological disability as it relates to the accident of record.” Finally, plaintiff argued that “due to the defendants’ failure to meet their required burden of proof, the plaintiff need not submit any evidence in opposition.”