Opinion
Index No. 717321/2018 Motion Seq. No. 001
05-28-2021
MAX GUERVIL and DEIKA MELEY, Plaintiffs, v. ROBERT SCHLEICHER, Defendant
Unpublished Opinion
Motion Date: 3/29/2021
PRESENT: Donna-Marie E. Golia, JSC
DECISION & ORDER
DONNA- ANE E. GOLIA, JSC
The following electronically filed documents numbered EF11 to EF21 and EF26 to EF37 read on this motion by defendant for summary judgment pursuant to New York Civil Practice Law and Rules ("CPLR") § 3212:
Papers Numbered
Notice of Motion, Affirmation, Exhibits, Affidavit of Service...........................
EF11 - EF21
Affirmation in Opposition, Exhibits...........................................................
EF26 - EF35
Affirmation in Reply and Affidavit of Service..............................................
EF36 - EF37
Defendant Robert Schleicher ("defendant") moves, pursuant to § CPLR 3212, for summary judgment dismissing the complaint on the ground that plaintiffs failed to sustain a "serious injury" under New York Insurance Law ("NYIL") §§ 5102(d) and 5104. Plaintiffs Max Guervil ("Guervil") and Deika Meley ("Meley" collectively "plaintiffs") oppose the motion. Upon the papers submitted, defendants motion is granted in part and denied in part, as discussed more fully below.
Plaintiffs commenced this action for personal injuries they sustained as a result of an alleged motor vehicle accident that occurred on September 3, 2018 on Old Country Road, 100 feet west of Zeckendorf Boulevard in Nassau County, New York, Plaintiff Guervil alleges injuries to his cervical and lumbar spine and right shoulder and plaintiff Meley alleges injuries to her cervical and lumbar spine and right knee.
In their bill of particulars, plaintiffs aver that they satisfy the following serious injury categories under NYIL § 5102(d): 1) significant disfigurement, 2) permanent consequential limitation of use of a body organ or member ("permanent consequential limitation"), 3) significant limitation of use of a body function or system ("significant limitation") and 4) a disabling injury for a period in excess of 90 out of the first 180 days following the alleged accident ("90/180 category").
In his motion, defendant argues that an examination of plaintiff Guervil by orthopedist, Dr. L. Sean Thompson ("Dr. Thompson"), on December 10, 2019 revealed subjective decreased ranges of motion and negative objective testing of the cervical and lumbar spine and right shoulder. Defendant also asserts that Dr. Thompson examined plaintiff Meley on October 10, 2019 and found subjective decreased ranges of motion and negative objective testing of the cervical and lumbar spine and right knee.
In further support of his motion, defendant annexes the medical reports of Dr. Jonathan Lerner ("Dr. Lerner"), a radiologist who performed independent reviews of each plaintiffs MRIs on March 17, 2020.
Additionally, defendant notes that plaintiff Guervil testified that he did not miss any time from work and was not confined to his bed following the alleged accident. Similarly, defendant points out that plaintiff Meley testified that she went to work the day after the alleged accident and did not miss any time from work nor was confined to her bed following the alleged accident. In that regard, defendant avers that neither plaintiff asserts a claim for loss of earnings. Defendant further asserts that both plaintiffs testified that there are no activities that they can no longer do following the alleged accident. Rather, defendant notes that plaintiff Meley only has difficulty running and that plaintiff Guervil only has difficulty playing recreational soccer and lifting anything heavy.
In opposition, plaintiffs argue that defendant failed to dispute the existence of Guervil's right shoulder tear that resulted in surgery and herniating and bulging discs with impingement in the cervical and lumbar spine as well as Meley's right knee tear and herniating and bulging discs with impingement in the cervical and lumbar spine.
Plaintiffs also argue that Dr. Ana Romeo ("Dr. Romeo") performed range of motion tests on both plaintiffs on September 11, 2018 and opined that plaintiff Guervil's knees, shoulders, neck and back injuries and plaintiff Meley's knees, neck and back injuries are causally related to the alleged accident. Plaintiffs also note that plaintiff Guervil underwent a right shoulder surgery on November 2, 2018 but still experiences pain in his right shoulder, neck and back despite receiving physical therapy and treatment. Likewise, plaintiffs point out that despite undergoing physical therapy and treatment, plaintiff Meley still experiences pain in her right knee, neck and back which interferes with her daily life.
Additionally, plaintiffs assert that orthopedist Dr. Donald Goldman ("Dr. Goldman") examined plaintiff Guervil on July 2, 2020 and found positive findings in his right shoulder and cervical and lumbar spine that are causally related to the alleged accident. Similarly, plaintiffs note that on July 23, 2020, orthopedist Dr. Hank Ross ("Dr. Ross") examined plaintiff Meley and found positive findings in her knees and cervical and lumbar spine that are causally related to the alleged accident.
Finally, plaintiffs argue that they each stopped treatment because once no-fault terminated payment for their medical care, they could no longer afford to pay for treatment out of their own pockets.
In reply, defendant argues that the Court should not consider plaintiffs' medical records (Exhibits H and I) because they are not affirmed. Defendant also contends that Drs. Goldman and Ross are non-treating experts and did not see plaintiffs until their respective exams two years after the alleged accident. Defendant further asserts that plaintiffs' MRIs taken more than two months after the alleged accident is "too remote in time to establish a causal relationship" between the alleged accident and plaintiffs' alleged injuries.
DISCUSSION
Pursuant to NYIL § 5104, "in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle .. . there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."
As a threshold matter in personal injury actions involving an automobile accident, a plaintiff is "required to plead and prove that he or she sustained a 'serious injury' as defined in the No-Fault Law" (Zecca v Riccardelli, 293 A.D.2d 31, 33 [2d Dept 2002] citing Licari v Elliott, 57 N.Y.2d 230, 236 [1982]; CPLR § 5102(d)).
Under NYIL § 5102(d), a "serious injury" is defined as one which results in, inter alia, significant disfigurement, permanent loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system or 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" (see, Oberly v Bangs Ambulance Inc., 96 N.Y.2d 295, 298 [2d Dept 2001]).
As the "'legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries,"' courts "have required objective proof of a plaintiffs injury in order to satisfy the statutory serious injury threshold" (Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350 [2002] [citations omitted]). Therefore, a "defendant has the initial burden of making a prima facie showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)" (Akhtar v Santos, 57 A.D.3d 593 [2d Dept 2008]: Farozes v Kamran, 22 A.D.3d 458, 458 [2d Dept 2005]). In doing so, where a defendant "relies solely on findings of the defendant's own medical witnesses, those findings must be in admissible form, i.e., affidavits or affirmations, and not unsworn reports, in order to make a 'prima facie showing of entitlement to judgment as a matter of law"' (Pagano v Kingsbury, 182 A.D.2d 268, 270 [2d Dept 1992] [citation omitted]).
Once defendant has made a prima facie showing, the burden shifts to "the plaintiff to come forward with sufficient evidence that [he or] she sustained a serious injury' (Lisa v Pastor, 262 A.D.2d 368 [2d Dept 1999]). Similarly, "a plaintiffs opposition, to the extent that it relies solely on the findings of the plaintiff's own medical witnesses, must be in the form of affidavits or affirmations, unless an acceptable excuse for failure to comply with this requirement is furnished" (Pagano, 182 A.D.2d at 270, supra).
I. Significant Disfigurement
Under NYIL § 5102(d), a significant disfigurement is established where a plaintiff has suffered an injury that "a reasonable person" would regard as "unattractive, objectionable, or as the object of pity and scorn" (Maldonado v Piccirilli, 70 A.D.3d 785, 786 [2d Dept 2010]). The defendant bears "the initial burden of establishing as a matter of law" that the plaintiff did not suffer a significant disfigurement (see, Borquist v Hyde Park Cent. Sch. Dist., 107 A.D.3d 926 [2d Dept 2013]).
Here, defendant has failed to establish, prima facie, that plaintiffs did not sustain a significant disfigurement as a result of the alleged accident (see, id.). Indeed, in his moving papers, defendant failed to address plaintiffs' claim that they sustained a significant disfigurement, let alone proffer any argument, evidence or authority under which to satisfy his initial prima facie burden (see, Ballard v Cunneen, 76 A.D.3d 1037, 1038 [2d Dept 2010]; Perez v Hilarion, 36 A.D.3d 536, 537 [1st Dept 2007]; Onder v Kaminski, 303 A.D.2d 665, 666 [2d Dept 2003]). As defendant has failed to establish his prima facie entitlement to judgment as a matter of law as to plaintiffs' claim of a significant disfigurement, the Court "need not consider the sufficiency" of plaintiffs' opposition papers (see, Onder, 303 A.D.2d at 666, supra; Ballard, 76 A.D.3d at 1038, supra). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiffs' claim of a significant disfigurement under NYIL § 5102(d) is denied (see, id.).
II. Permanent Consequential Limitation of Use of a Body Organ or Member
Defendant argues that plaintiffs' injuries do not qualify as a serious injury under the permanent consequential limitation category of NYIL § 5102(d).
Under NYIL § 5102(d), "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim" (Grossman v Wright, 268 A.D.2d 79, 83-84 [2d Dept 2000]). Upon making this showing, "the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law" (id.).
a. Plaintiff Guervil
Here, defendant has failed to establish, prima facie, that plaintiff Guervil did not suffer a permanent consequential limitation of use to his cervical and lumbar spine and right shoulder under NYIL § 5102(d). Indeed, defendant submitted the medical report of his examining orthopedist, Dr. Thompson, who examined plaintiff Guervil's range of motion using a goniometer on December 10, 2019 and found significant limitations in his cervical and lumbar spine and right shoulder (see, Def. Exh. C; Kang v Guillen, 151 A.D.3d 827, 828 [2d Dept 2017]; Mercado v Mendoza, 133 A.D.3d 833, 834 [2d Dept 2015]; Miller v Bratsilova, 118 A.D.3d 761 [2d Dept 2014]; Howard v King, 307 A.D.2d 278, 278 [2d Dept 2003]; cf., Duncan v New York City Transit Auth., 273 A.D.2d 437, 437 [2d Dept 2000]).
While Dr. Thompson opined that his examination revealed "a loss of range of motion which is considered subjective in nature," and that there was 'no objective evidence of an orthopedic instability or permanency as it relates to the accident," such opinion is belied by the fact that Dr. Thompson performed objective testing using a "handheld goniometer or an inclinometer" and comparing plaintiff Guervil's range of motion to the normal active range of motion values according to the American Medical Association's ("AMA") "Guidelines to the Evaluation of Permanent Impairment" (see, Def. Exh. C; e.g., Fiorucci-Melosevich v Harris, 166 A.D.3d 581,581 [2d Dept 2018]; Desulme v Stanya, 12 A.D.3d 557, 558 [2d Dept 2004]; see also, Martin v Portexit Corp., 98 A.D.3d 63, 67-68 [1st Dept 2012]; Lopez v Abdul-Wahab, 67 A.D.3d 598, 599 [1st Dept 2009]).
Moreover, to the extent that Dr. Thompson opined that plaintiff Guervil's right shoulder arthroscopy, cervical spine sprain/strain and lumbar spine sprain/strain were resolved, such conclusory opinion is insufficient to satisfy defendant's prima facie burden in light of the fact that Dr. Thompson's objective range of motion testing showed significant deficits and limitations in his range of motion (see, id.; Jeffers v Style Transit Inc., 99 A.D.3d 576, 577 [1st Dept 2012]).
Similarly, Dr. Lerner's conclusory opinion that there is "no causal relationship" between plaintiff Guervil's MRI findings and the alleged accident is insufficient to establish defendant's prima facie showing (see, Def. Exh. D; Patterson v Metro. Suburban Bus Auth., 112 A.D.3d 682, 683 [2d Dept 2013]; Landman v Sarcona, 63 A.D.3d 690, 691 [2d Dept 2009]). Indeed, despite acknowledging the various findings of plaintiff Guervil's MRIs, Dr. Lerner does not proffer any explanation to reconcile his conclusion that there is no causal relationship between the findings and the alleged accident (see, id.; Corcione v John Dominick Cusumano, Inc., 84 A.D.3d 1010, 1011 [2d Dept 2011]). For instance, while Dr. Lerner opines that the finding of "mild diffuse disc bulge at C5-C6 with effacement of the ventral subarachnoid space" is "consistent with degenerative disc disease and suggestive of a chronic degenerative process as opposed to an acute traumatic event," such opinion is speculative and conclusory in light of Dr. Lerner's failure to make any specific finding that plaintiff Guervil in fact suffers from a degenerative condition (see, Def. Exh. D; Landman, 63 A.D.3d at 691, supra; Powell v Prego, 59 A.D.3d 417, 419 [2d Dept 2009]).
Dr Lerner notes that plaintiff Guervil's October 18, 2018 MRI of the cervical spine showed "mild diffuse disc bulge with effacement of the ventral subarachnoid space. his October 26 2018 MRI of the lumbar spine showed "shallow diffuse disc bulge with effacement of the thecal sac at L4-L5, and his October 3, 2018 MRI of the right shoulder showed "[d]iffuse supraspinatus and infraspinatus tendinosis with a low-grade partial-thickness bursal surface tear of the supraspinatus tendon'' and "(moderate acromioclavicular joint osteoarthritis with capsular hypertrophy and subchondral irregularity (see, Def. Exh D).
As defendant has failed to meet his prima facie burden with respect to plaintiff Guervil, the Court need not determine whether plaintiffs' opposition papers are sufficient to raise a triable issue of fact (see, id.; Kang, 151 A.D.3d at 828, supra; Mercado, 133 A.D.3d at 834, supra). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiff Guervil's claim of permanent loss of use to his cervical and lumbar spine and right shoulder under NYIL § 5102(d) is denied.
b. Plaintiff Meley
Defendant has failed to establish, prima facie, that plaintiff Meley did not sustain a permanent consequential limitation of use to her cervical and lumbar spine under NYIL § 5102(d). Indeed, Dr. Thompson performed an objective range of motion test on Meley on October 10, 2019 and found significant limitations in her cervical and lumbar spine (see, Def. Exh. E; Kang, 151 A.D.3d at 828, supra; Mercado, 133 A.D.3d at 834, supra). To the extent that Dr. Thompson opined that plaintiff Meley's cervical and lumbar spine sprain/strain were "resolved," such conclusory opinion is insufficient to satisfy defendant's prima facie burden in light of the fact that Dr. Thompson's objective range of motion test showed significant deficits and limitations to these parts of her body (see, Def. Exh. E; Jeffers, 99 A.D.3d at 577, supra).
As Dr. Thompson used a "handheld goniometer or an inclinometer" to measure plaintiff Meley's range of motion and compared her range of motion to the normal active range of motion values according to the AMA's "Guidelines to the Evaluation of Permanent Impairment," defendant's assertion that there was no objective evidence of an orthopedic instability or permanency as it relates to the alleged accident is without merit (see, Fiorucci-Melosevich, 166 A.D.3d at 581, supra).
Similarly, Dr. Lerner's opinion that there is "no causal relationship" between plaintiff Meley's MRI findings and the alleged accident is insufficient to establish defendant's prima facie showing (see, Def. Exh. F; Patterson, 112 A.D.3d at 683, supra; Landman, 63 A.D.3d at 691, supra). Indeed, despite acknowledging the various findings of plaintiff Meley's MRIs, Dr. Lerner does not proffer any explanation to reconcile his conclusion that there is no causal relationship between the findings and the alleged accident (see, id.; Corcione, 84 A.D.3d at 1011, supra). For example, while Dr. Lerner notes that plaintiff Meley's MRI showed "mild diffuse disc bulge with effacement of the ventral subarachnoid space" at C4-C7, he does not opine as to cause of the same (see, id.). Rather, Dr. Lerner generalizes that this finding without "significant neural foraminal compromise" is "clinically insignificant" and is common in an asymptomatic patient (see, Def. Exh. D; Landman, 63 A.D.3d at 691, supra; Powell, 59 A.D.3d at 419, supra). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiff Meley's claim of permanent loss of use to her cervical and lumbar spine under NYIL § 5102(d) is denied.
Dr. Lerner notes that plaintiff Meley's October 11,2018 MRI of the cervical and lumbar spine showed "mild diffuse disc bulge with effacement of the ventral subarachnoid space" at C4-C7" and mild diffuse disc bulge and left-sided facet osteoarthritis" at L4-L5 and L5-S1." Dr. Lerner also notes that there is "effacement of the thecal sac" (see, Def. Exh. F).
However, defendant has established, prima facie, that plaintiff Meley did not suffer a permanent consequential limitation of use to her right knee. Indeed, Dr. Thompson found a normal range of motion in her right knee and opined that this alleged injury was not the result of the alleged accident (see, Def. Exh. E). Similarly, the medical report of Dr. Lerner who reviewed plaintiff Meley's October 3, 2018 right knee MRI further buttresses defendant's prima facie showing that she did not suffer a permanent consequential limitation of use to her right knee (see, Def Exh. D). Upon reviewing the MRI, Dr. Lerner determined that there was "no evidence of fracture, dislocation or soft tissue abnormality to suggest an acute traumatic event [or] discrete meniscal tear" and that the MRI "reveals no causal relationship between [the] alleged accident and the findings on [her] MRI examination" (see, id.; Jilani v Palmer, 83 A.D.3d 786, 787 [2d Dept 2011]).
In response, plaintiffs have raised a triable issue of fact to rebut defendant's prima facie showing (see, Grossman, 268 A.D.2d at 83-84, supra; John v Engel, 2 A.D.3d 1027, 1029 [3d Dept 2003]; Toure, 98 N.Y.2d at 353, supra). Plaintiffs submitted the medical report of their examining orthopedist, Dr. Ross, who examined plaintiff Meley's range of motion on July 23, 2020 using a goniometer and found significant deficits in her right knee (see, Pl. Exh. G). Exh. G). Dr. Ross also opined that contrary to Dr. Lerner's opinion, plaintiff Meley's right knee injury is not "due to degeneration or a preexisting condition," but rather, is causally related to the alleged accident (see, id.; Greenberg v Macaqnone, 126 A.D.3d 937, 938 [2d Dept 2015]; Himmelburger v Buchris, 117 A.D.3d 801, 802 [2d Dept 2014]; Smith v Matinale, 58 A.D.3d 829 [2d Dept 2009]). Accordingly, as plaintiffs have rebutted defendant's prima facie showing, the branch of defendant's motion seeking summary judgment dismissing plaintiff Meley's claim of permanent loss of use to her right knee under NYIL § 5102(d) is denied.
III. Significant Limitation of Use of a Body Function or System
Defendants argue that plaintiffs' injuries do not qualify as a serious injury under the significant limitation of use of a body function or system category of NYIL § 5102(d).
Under the significant limitation category of NYIL § 5102(d), "any assessment of the 'significance' of a bodily limitation necessarily requires consideration not only of the extent or degree of limitation, but of its duration as well, notwithstanding the fact that Insurance Law § 5102(d) does not expressly set forth any temporal requirement for a 'significant limitation'" (Griffiths v Munoz, 98 A.D.3d 997 [2d Dept 2012]; Toure, 98 N.Y.2d at 353, supra).
a. Plaintiff Guervil
Here, defendant has failed to establish, prima facie, that plaintiff Guervil did not suffer a significant limitation of use to his cervical and lumbar spine and right shoulder under NYIL § 5102(d). Indeed, defendant submitted the medical report of his examining orthopedist, Dr. Thompson, who performed an objective range of motion test on plaintiff Guervil using a goniometer on December 10, 2019 and found significant limitations in his cervical and lumbar spine and right shoulder (see, Def. Exh. C; Zahoudanis v United Parcel Serv. Gen. Servs. Co., 192 A.D.3d 949, 950 [2d Dept 2021]; Singleton v F &R Royal, Inc., 166 A.D.3d 837, 838 [2d Dept 2018]). Similarly, defendant's submission of Dr. Lerner's medical report is insufficient to satisfy his prima facie burden as Dr. Lerner's opinion that there is "no causal relationship" between plaintiff Guervil's MRI findings and the alleged accident is conclusory and speculative (see, id; Holiday v United Steel Prod., Inc., 139 A.D.3d 804, 805 [2d Dept 2016]; Patterson, 112 A.D.3d at 683, supra; Def. Exh. D).
As defendant has failed to meet his prima facie burden with respect to plaintiff Guervil, the Court need not determine whether plaintiffs' opposition papers are sufficient to raise a triable issue of fact (see, Singleton, 166 A.D.3d at 838, surpa; Nunez v Alies, 162 A.D.3d 1058, 1059 [2d Dept 2018]). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiff Guervil's claim of significant limitation of use to his cervical and lumbar spine and right shoulder under NYIL § 5102(d) is denied.
b. Plaintiff Meley
Defendant has also failed to establish, prima facie, that plaintiff Meley did not sustain a suffer a significant limitation of use to her cervical and lumbar spine under NYIL § 5102(d). Indeed, defendant submitted the medical report of Dr. Thompson, who examined plaintiff Meley's range of motion using a goniometer on October 10, 2019 and found significant limitations in her cervical and lumbar spine (see, Def. Exh. E; Zahoudanis, 192 A.D.3d at 950, supra; Singleton, 166 A.D.3d at 838, supra). Likewise, defendant's submission of Dr. Lerner's medical report is insufficient to meet his prima facie burden with respect to plaintiff Meley's cervical and lumbar spine injuries as Dr. Lerner's opinion that there is "no causal relationship" between her MRI findings and the alleged accident is conclusory and speculative (see, id.; Holiday, 139 A.D.3d at 805, supra; Patterson, 112 A.D.3d at 683, supra; Def. Exh. F).
As defendant has failed to meet his prima facie burden with respect to plaintiff Meley's cervical and lumbar spine injuries, the Court need not determine whether plaintiffs' opposition papers are sufficient to raise a triable issue of fact (see, Singleton, 166 A.D.3d at 838, surpa; Nunez, 162 A.D.3d at 1059, supra). Accordingly, the branch of defendant's motion seeking summary judgment dismissing plaintiff Meley's claim of a significant limitation of use to her cervical and lumbar spine under NYIL § 5102(d) is denied.
However, defendant has established, prima facie, that plaintiff Meley did not suffer a significant limitation of use to her right knee. Indeed, Dr. Thompson found a normal range of motion in her right knee upon performing an objective range of motion test on October 10, 2019 and opined that this alleged injury was not the result of the alleged accident (see, Def. Exh. E; Yeu Jin Balk v Enriguez, 124 A.D.3d 880, 881 [2d Dept 2015]; Staff v Yshua, 59 A.D.3d 614 [2d Dept 2009]). Similarly, the medical report of Dr. Lerner who reviewed plaintiff Meley's October 3, 2018 MRI of her right knee further buttresses defendant's prima facie showing that plaintiff Meley did not suffer a significant limitation of use to her right knee (see, Def. Exh. F). Upon reviewing her MRI, Dr. Lerner determined that there was "no evidence of fracture, dislocation or soft tissue abnormality to suggest an acute traumatic event [or] discrete meniscal tear" and opined that the MRI "reveal[ed] no causal relationship between [the] alleged accident and the findings on [the] MRI examination" (see, id.; Jilani, 83 A.D.3d at 787, supra).
In response, plaintiffs have raised a triable issue of fact to rebut defendant's prima facie showing (see, Grossman. 268 A.D.2d at 83-84, supra; John, 2 A.D.3d at 1029, supra; Toure, 98 N.Y.2d at 353, supra). Plaintiffs submitted the medical report of their examining orthopedist, Dr. Ross, who examined plaintiff Meley's range of motion on July 23, 2020 using a goniometer and found significant deficits in her right knee (see, Pl. Exh. G; Noel v Choudhury, 65 A.D.3d 1316, 1316 [2d Dept 2009]). Dr. Ross also opined that contrary to Dr. Lerner's opinion, plaintiff Meley's right knee injury is not "due to degeneration or a preexisting condition," but rather, is causally related to the alleged accident (see, id.; Himmelburqer, 117 A.D.3d at 802, supra). Accordingly, as plaintiffs have rebutted defendant's prima facie showing, the branch of defendant's motion seeking summary judgment dismissing plaintiff Meley's claim of a significant limitation of use to her right knee under NYIL § 5102(d) is denied.
IV. 90/180 Category
Defendant argues that plaintiffs did not sustain a medically determined injury or impairment that prevented them from performing substantially all of the material acts constituting thei r customary daily activities during at least 90 of the first 180 days following the alleged accident.
To establish a serious injury under the 90/180 category of NYIL § 5102(d), a "plaintiff must establish that he or she 'has been curtailed from performing his [or her] usual activities to a great extent'" rather than "some slight curtailment" (Lanzarone v Goldman, 80 A.D.3d 667, 669 [2d Dept 2011]; DeFilippo v White, 101 A.D.2d 801,803 [2d Dept 1984]).
Here, defendant has established, prima facie, that plaintiffs did not suffer a serious injury under the 90/180 category of NYIL § 5102(d). Indeed, both plaintiffs testified that there are no activities that they used to do prior to the accident that they can no longer do as a result of their alleged injuries (see, Def. Exh. G, H). Rather, plaintiff Guervil testified that he experiences pain in his shoulder and back if he picks up something heavy, sits for a "long time," or makes a "brisk movement" with his shoulder (see, Def. Exh. G). Plaintiff Guervil also stated that it is now "more difficult" for him to play recreational soccer and go fishing due to pain in his knees and shoulders (see, id.). Similarly, plaintiff Meley testified that she experiences pain in her back and knees if she sits for "too long" and that it is "more difficult" to run and drive for more than an hour following the alleged accident due to knee and back pain (see, Def. Exh. H). However, while both plaintiffs testified that it is more difficult to perform certain activities due to pain, their subjective complaints of pain alone without more is insufficient to establish that their claimed injuries qualify as a serious injury under the 90/80 category of NYIL § 5102(d) (see, id.; Lanzarone, 80 A.D.3d at 669, supra; Hemsley v Ventura, 50 A.D.3d 1097, 1098 [2d Dept 2008]).
Moreover, plaintiff Guervil testified that he was confined to his bed for two-to-three weeks after the alleged accident while plaintiff Meley testified that she was not confined to her bed but was confined to her home for a couple of days following the alleged accident (see, Def. Exh. G, H; Bacon v Bostany, 104 A.D.3d 625, 628 [2d Dept 2013]; Tabacco v Kasten, 229 A.D.2d 526, 526 [2d Dept 1996]). Significantly, both plaintiffs testified that there are no work-related activities that they are restricted from doing and plaintiff Meley testified that she did not miss any time from work due to the alleged accident (see, Def. Exh. G, H; Heesook Choi v Mendez, 161 A.D.3d 1054, 1055 [2d Dept 2018]; Small v City of New York, 148 A.D.3d 959, 960 [2d Dept 2017]; John v Linden, 124 A.D.3d 598, 599 [2d Dept 2015]; Marin v leni, 108 A.D.3d 656, 657 [2d Dept 2013]).
In opposition, plaintiffs failed to establish that they have been curtailed from performing their usual activities to a "great extent" (see, id.). Indeed, the medical reports of Drs. Golden and Ross neither mention that either plaintiff has any restrictions, limitations or difficulty performing any activities of daily living nor identify the specific tasks and/or activities that they can no longer perform (see, Pl. Exh. F, G; Maldonado v Lee, 278 A.D.2d 206, 207 [2d Dept 2000]; Lopez, 65 N.Y.2d at 1019, supra). In that regard, plaintiffs' self-serving statements alone are insufficient to show that they sustained a serious injury within the meaning of the 90/180 category of NYIL § 5102(d) (see, Pl. Exh. A, B; Sainte-Aime v Ho, 274 A.D.2d 569, 570 [2d Dept 2000]; Hemsley v Ventura, 50 A.D.3d 1097, 1098 [2d Dept 2008]; Estrella v Marano, 255 A.D.2d 358, 358 [2d Dept 1998]). Accordingly, as plaintiffs have failed to provide competent medical evidence to rebut defendant's prima facie showing, the branch of defendant's motion for summary judgment dismissing plaintiffs' claim of a serious under the 90/180 category of NYIL § 5102(d) is granted (see, Nunez v Motor Vehicle Acc. Indemnification Corp., 96 A.D.3d 917, 919 [2d Dept 2012]).
In sum, defendant's motion for summary judgment dismissing the complaint on the ground that plaintiffs failed to sustain a "serious injury" under New York Insurance Law ("NYIL") §§ 5102(d) and 5104 is granted in part and denied in part.
This constitutes the Decision and Order of the Court.