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Insurance Law § 5102 (d…cont

Plaintiff claims that she sustained a “serious injury,” as defined by Insurance Law § 5102 (d), in that she suffered a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and was unable to attend to her usual activities for a period in excess of 90 days during the first 180 days following the bike accident.

In order to establish that she suffered a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system, plaintiff must show more than “a mild, minor or slight limitation of use” and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration. Resolution of the issue of whether a serious injury was sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part.

In opposition to defendants’ motions, plaintiff proffers the affidavit of treating doctor, as well as her own affidavit. In his report he stated that he first examined plaintiff on May 28, 2003. He noted plaintiff’s complaints of neck pain, radiating into her right arm along with upper thoracic pain. His examination revealed that plaintiff had sustained “significant cervical and thoracic strain with possibility of concussion and evidence of cervical radiculopathy ruling out a herniated disc”. He stated, that he treated plaintiff on May 11, 2005, at which time an electromyography was performed which revealed: “mild right C6 radicular dysfunction and bilateral median nerve entrapments at the wrists”. The doctor noted that plaintiff’s cervical MRI film revealed mild disc herniation at C5-C6 and central disc protrusion at C2-C3 with a disc bulge at C3-C4. He stated that he re-examined the plaintiff on November 28, 2007, and found diffuse tightness across the upper back musculature. He opined that plaintiff’s injuries were caused by the accident on “May 18, 2003”. He further opined that plaintiff’s injuries are permanent in nature. He also stated that plaintiff still demonstrates medically significant restriction of motion in her cervical spine and has not improved beyond her present condition.

There were no dog bite involved.

In her own affidavit, plaintiff asserts that three years after the date of the accident, she continues to experience upper back pain, lower back pain and right arm pain. Plaintiff states that over three years after the accident, she was unable to engage in pre-accident activities such as cleaning, washing dishes, writing letters and sitting for long periods. She further avers that she received physical therapy twice per week for two months after the accident and “then again from November 2005 through January 2006”. Plaintiff also submitted two unaffirmed radiology reports dated November 4, 2002 and August 4, 2004 on MRI studies taken of plaintiff’s lumbar spine and cervical spinal injury.

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