Opinion
3903/03.
Decided December 23, 2004.
Defendant has submitted competent medical evidence including the affirmation of her examining orthopedist and radiologist and the plaintiff's deposition testimony which establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. (See, Gaddy v. Eyler, 79 NY2d 955; Jackson v. New York City Tr. Auth., 273 AD2d 200; Greene v. Miranda, 272 AD2d 441). Thus, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting competent medical proof. (see, Gaddy v. Eyler, supra; Licari v. Elliott, 57 NY2d 230, 235; Lopez v. Senatore, 65 NY2d 1017). This the plaintiff failed to do.
In opposition to the motion the plaintiff submitted her treating chiropractor's, Dr. Lobrutto's, affirmed examination reports and the affirmed report of Dr. Freilich, the radiologist who performed the MRI of her cervical and lumbar spine which are insufficient to raise a question of fact as to whether plaintiff sustained a serious injury.
Dr. Freilich reported cervical and lumbar bulges which he opined, in conclusory terms, are causally related to the accident without providing an objective medical basis for his opinion and is as to causation without evidentiary value. (see, Franchini v. Palmieri, 1 NY3d 536; McHaffie v. Antieri, 190 AD2d 780; Gaddy v. Eyler, 79 NY2d 955; Lopez v. Senatore, supra; Cannizzaro v. King, 187 AD2d 842; Flater v. Brennan, 173 AD2d 945.) Although a bulging disc may constitute a serious injury a plaintiff must also provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration. (See, Espinal v. Galicia, 290 AD2d 528; Duldulao v. City of New York, 284 AD2d 296, 297 Monette v. Keller, 281 AD2d 523, 523-24.) In this case, however, it is clear from the medical evidence submitted by the plaintiff that she had sustained, at most, soft tissue injuries and limitations in movement which are not of sufficient magnitude to qualify as a "significant" or "important limitation of use". (See, Licari v. Elliott, supra; Scheer v. Koubek, 70 NY2d 678; Pajda v. Pedone, 303 AD2d 729; Arrowood v. Lowinger, 294 AD2d 315, 316; Bandoian v. Bernstein, 254 AD2d 205); Barrett v. Howland, 202 AD2d 383; LeBrun v. Joyner, 195 AD2d 502; Coughlan v. Donnelly, 172 AD2d 480.) Dr. Lebrottu's July 3, 2002 report of his final examination of the plaintiff on February 12, 2002 states that the restrictions he quantified are mild or moderate. A "minor, mild or slight" limitation does not constitute a serious injury. Licari v. Elliott, 57 NY2d at 236.) In addition, plaintiff's claims of intermittent or transitory pain, even when supported by medical evidence or claimed to be permanent, are insufficient as a matter of law. (See, Scheer v. Koubek, supra; Palmer v. Amaker, 141 AD2d 622, 623; Garson v. Dowd, 143 AD2d 113, appeal withdrawn 73 NY2d 974.)
Finally, the plaintiff's deposition testimony that she lost no time from work shows she was able to resume her normal activities and is conclusive evidence that the injuries are not permanent or significant within the meaning of the statute. (See, Attanasio v. Lashley, 223 AD2d 614; Winkler v. Lombardi, 205 AD2d 757.)