SU YOUNG JUNG v. CRUZ

Full title: SU YOUNG JUNG AND HAE SOOK YEO, Plaintiff(s), v. CRYSTAL MARIE CRUZ AND…

Court: Supreme Court of the State of New York, Queens County

Date published: Sep 1, 2009

2009 N.Y. Slip Op. 51959 (N.Y. Sup. Ct. 2009)

899 N.Y.S.2d 63

Opinion

02928/2008.

Decided September 1, 2009.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ROBERT J. MCDONALD, J.

This is a motion for summary judgment by the defendants pursuant to CPLR 3212 on the ground that the plaintiffs failed to demonstrate that they sustained "serious injury" pursuant to Insurance Law 5102(d) in an automobile accident that occurred November 10, 2007 on College Point Boulevard in Queens County, in which the defendant Shannon Shaud operated a 1996 Geo that was owned by Crystal Cruz which struck a BMW owned and operated by Su Young Jung and in which Hae Sook Yeo was a passenger.

The motion submitted on behalf of the defendants were adopted by counsel McGrath representing Hae Sook Yeo on the counterclaims made by her against Su Young Jung, the driver. .

The plaintiffs affirmation in opposition which requests that the instant motion be denied as untimely is denied because of the stipulation filed by counsel which extended the time within which the relief sought could be made.

SU YOUNG JUNG

Mr Jung testified at his deposition held on September 17, 2008. "Q. What part of your body came into contact with what part of the car ? A. The neck hit the headrest, the lower shoulder hit the seat as well as the lower back. Also, the right knee hit the dashborad"[35] He was not bleeding but was in "shock" [35]. Two airbags in front and one air bag in the rear deployed [39]. They were the airbags on the front doors, the third one was the airbag on the roof above the windshield [41]. He did not use the ambulance which had come to the scene [43] He got medical attention "a day or two or three days after the accident" [47]. When he went to Nair Pain Treatment Center after seeing their newspaper ad [48]. He complained about his neck, shoulder, lower back and knee [48]. At Nair he received chiropractic care, acupuncture, and "electric acupuncture" [49] which he received for on a "regular basis" 3 or 4 times a week up to May 2008 when the pain clinic told him "they would no longer provide treatment"[50]. Nair requested that he get x-rays of his knee [ 52]. Mr. June was unable to distinguish between the dates for the x-rays and MRI [53] and could not state what parts of his body were subject to x-ray and MRI.. Dr. Mun of Nara performed an electromyography [54]/ The pain clinic prescribed a brace to support his lower back which he wears when "it hurts him a lot" [56]. Following the accident he was confined to his bed for three weeks [58]. He denied ever having sustained injuries prior to this accident [63]. He claimed that "[s]itting like this for a longtime, walking, lifting heavy objects, paying golf. I used to go to the gym to exercise and I haven't been able to." [67]. A doctor had suggested surgery to the lower back [70]. He now relies on his children to carry things when he shops [73].

The defendants submit an affirmation of Dr. Joseph Elfenbein, M.D., a Board Certified Orthopedic Surgeon, dated March 25, 2009 in which he gives his findings of an examination made the same day of Su Young Jung. Dr. Elfenbein performed his orthopedic examination of Mr. Jung's Cervical Spine, Thoracic Spine, Lumbar Spine, Right Shoulder, Left Shoulder, Right Knee, and Left Knee. Dr. Elfenbein's " IMPRESSION: 1. Cervical spine sprain/strain — resolved. 2. Lumbar spine sprain/strain — resolved. 3. Right shoulder sprain/strain — resolved 4. Right knee sprain/strain — resolved." Dr. Elfenbein's " OPINION: There are no objective findings of disability or permanency. Mr. Jung is presently working. The claimant is capable of working without any limitations. He is capable of performing all activities of daily living without restrictions. There is no need for casually related orthopedic treatment."

The defendants submit an affirmation of Dr. Daniel Feuer, M.D., Board Certified in Psychiatry and Neurology, dated April 23, 2009 in which he gave his findings of an examination made of the plaintiff Su Young Jung on April 21, 2009. Dr. Feuer performed his neurological examination of Mr. Jung's Head, Cervical Spine, Lubosacral spine, Cranial nerves, Mental status, Motor, Deep tendon reflexes, Sensory examination, Coordination, and Gait. As part of Dr. Feuer's "IMPRESSION" he stated "Based on a reasonable degree of clinical certainty, I believe the claimant, Mr. Su Young Jung, does not demonstrate an objective neurological disability or neurological permanency, which is causally related to the accident of November 10, 2007. He is neurologically stable to engage in full active employment as a construction worker as well as full activities of daily living without restrictions."

The defendants submit three affirmations of Dr. Alan B. Greenfield, M.D., a Board Certified Radiologist, dealing with his findings. Dr. Greenfield's findings presented in his affirmation made April 27, 2009 relying on an MRI of Mr. Jung's right shoulder performed at Kissena Medical Imaging indicates that Mr. Jung had "Chronic partial thickness tears of the supraspinatus and subscapularis tendons. The chronic long standing nature of these findings are supported by the lack of any adjacent fluid in or around the joint space. In addition, there is a small chronic erosion of the humeral head. The constellation of the above-noted findings cannot be attributed to an accident occurring on 11/10/07 with reasonable medical certainty." On June 18, 2009 Dr. Greenfield looked at an MRI of Mr. Jung's Lumbar Spine performed at Queens Radiology Imaging and executed his affirmation. Dr. Greenfield noted "disc desiccation and dehydration throughout the lumbar spine indicating diffuse degenerative disease." In his affirmation Dr. Greenfield noted his "Impression" that Mr. June had diminished lordotic curvature "which may be constitutional in origin, related to patient positioning within the MR gantry or due to restricted range of motion from extensive degenerative bony osteophytic ridging, degenerative facet disease or underlying disc abnormalities." Dr. Greenfield further found that Mr. Jung's degenerative disc disease "are clearly long-standing and degenerative in origin, unrelated to the accident." Similarly, the "extensive degenerative findings from L4 through S1, the coexistent disc herniations near the midline and extending toward the left at both levels cannot be attributed to the accident." Finally, Dr. Greenfield stated "There is no findings on this examination which can be attributed to the accident dated above with any reasonable degree of medical certainty." On the same day, June 18, 2009, Dr. Greenfield looked at the MRI of Mr. Jung's Cervical Spine performed at Queens Radiology Imaging. Dr. Greenfield found that Mr. Jung had a straightening of cervical lordosis. It was Dr. Greenfield's opinion that the straightening of cervical lordosis "is a non-specific finding and maybe constitutional in origin" related to the positioning when the MRI was done or "due to restricted range of motion from degenerative boy osteophytic ridging particularly from C5 through C7." He found that his findings were "all clearly long-standing, degenerative and are unrelated to the accident" and "[t]here are no findings on this examination which can be attributed to an accident occurring on 11/10/07 with any reasonable degree of medical certainty."

The plaintiff Su Young Jung submits an affidavit of Dr. David Mun, M.D., sworn to August 14, 2009, in which Dr. Mun presents his medical findings related to Su Young Jung. Dr. Mun first saw Mr. Jung on November 15, 2007 and treated him continuously until January 14, 2008, finally examining him for the purpose of submitting the instant affidavit on July 30, 2009. Dr. Mun found that Mr. Jung's condition is "permanent and any medical treatments he receives are palliative in nature."

Dr. Mun opined "The symptoms are getting progressively worse. Activities that aggravate the symptoms are standing, bending, lifting, twisting, turning, and coughing. Mr. Jung stated that he had no difficulty with these symptoms prior to the accident of November 10, 2007." In his initial examination on November 15, 2007 using objective Range of Motion tests, he found that Mr. Jung's range of motion "severely restricted with pain. He has limited range of motion."

On November 15, 2007 the following findings were made as to Mr. Jung's cervical spine. "Cervical flexion — Normal range of motion 45 degrees, today's result: 10 degrees, with pain at the end point; Cervical extension — normal range of motion is 45 degrees, today's result: 20 degrees, with pain at the end point; Cervical left rotation — normal range of motion is 80 degrees, today's result: 60 degrees, pain with movement at end point; Cervical right rotation — normal range of motion is 80 degrees, today's result: 70 degrees, pain with movement at end point."

On July 30, 2009 Mr. Jung's findings were as follows "Cervical flexion — Normal range of motion 45 degrees, today's result: 30 degrees, with pain at the end point; Cervical extension — normal range of motion is 45 degrees, today's result: 30 degrees, with pain at the end point; Cervical right lateral flexion-normal range of motion is 45 degrees, today's result: 40 degrees, with pain at the end point; Cervical left lateral flexion-normal range of motion is 45 degrees, today's result: 40 degrees, with pain at the end point; Cervical left rotation — normal range of motion is 80 degrees, today's result: 70 degrees, pain with movement at end point. Cervical right rotation — normal range of motion is 80 degrees, today's result: 70 degrees, pain with movement at end point."

These findings were made with a goniometer. The range of motion was determined by actively moving the affected area by hand to its end range. "The end range is measured objectively via detection of myospasm in the specific plane. It should be noted that subjective patient pain is not a determining factor when measuring specific planar motion."

On November 15, 2007 the following findings were made regarding Mr. Jung's lumbar spine. "Lumbar flexion — Normal range of motion is 90 degrees, today's result: 50 degrees, pain with movement at end point; Lumbar extension — normal range of motion is 30 degrees, today's result: 10 degrees, pain with movement at end point; left rotation — normal range of motion is 30 degrees, today's result: 10 degrees, pain with movement at end point; right rotation — normal range of motion is 30 degrees, today's result: 10 degrees, pain with movement at end point."

On July 30, 2009 the following findings were made regarding Mr. Jung's lumbar spine. "Lumbar flexion — Normal range of motion is 90 degrees, today's result: 80 degrees, with pain at end point; Lumbar extension — normal range of motion is 30 degrees, today's result: 20 degrees, with pain at end point; right lateral flexion — normal range of motion is 30 degrees, today's result: within normal limits, with pain at end point; left lateral flexion — normal range of motion is 30 degrees, within normal limits, with pain at end point."

The tests used to determine the range of motion for the cervical and lumbar spine includes, Shoulder Depression Test, Spurling's Test, Kemp's Test, Straight Leg Raising Test, Laseque's Test, Braggard's Test, Cervical Compression Test, and Cervical Distraction Test.

On November 15, 2007 the following findings were made regarding Mr. Jung's right shoulder. "Right shoulder flexion — Normal range of motion is 180 degrees, today's result: 140 degrees, pain with movement at end point; right shoulder abduction — normal range of motion is 180 degrees, today's result: 120 degrees, pain with movement at end point."

On July 30, 2009 the following findings were made regarding Mr. Jung's right shoulder. "Right shoulder flexion — Normal range of motion is 180 degrees, today's result: 170 degrees, with pain at end point; right shoulder abduction — normal range of motion is 180 degrees, today's result: 160 degrees, pain with movement at end point."

On November 15, 2007 the following findings were made regarding Mr. Jung's right knee. "Right knee flexion — Normal range of motion is 140 degrees, today's result: 100 degrees, pain with movement at end point"

On July 30, 2009 the following findings were made regarding Mr. Jung's right knee. "Right knee flexion — Normal range of motion is 140 degrees, today's result: 130 degrees, with pain at end point."

Dr. Mun referred Mr. Jung to Kissena Medical Imaging and Radiology Imaging of Queens for MRI studies. The MRI of Mr. Jung's lumbosacral spine performed January 9, 2008 "revealed disc herniations at L4-5 and L5-S1 with multiple bulges, Straightening of the normal posterior concavities of the L2-3 and L3-4 disc compatible bulges." The examinations performed by Dr. Mun on November 15, 2007 and July 30, 2009 were consistent with the MRI findings. The MRI of Mr. Jung's cervical spine performed January 14, 2008 "revealed straightening of the cervical lordosis due to spasm and bulges at C5-6 and C6-7." The examinations performed by Dr. Mun on November 15, 2007 and July 30, 2009 were consistent with these MRI findings. The MRI of Mr. Jung's right knee performed January 10, 2008 "revealed joint effusion." The examinations performed by Dr. Mun on November 15, 2007 and July 30, 2009 were consistent with these MRI findings. The MRI of Mr. Jung's right shoulder performed January 11, 2008 "revealed tear of supraspinatus and subscapularis tendons." The examinations performed by Dr. Mun on November 15, 2007 and July 30, 2009 were consistent with these MRI findings.

"Upon recent examination on July 30, 2009, final diagnosis is as follows: Cervical derangement and cervical radiculophathy. Lumbar disc herniations and lumbar radiculopathy. Lower back pain. Right shoulder rotator cuff tear. Right knee effusion."

Dr. Mun stated in his affidavit that Mr. Jung is "permanently disabled", and he "will not recover fully of the physical limitations, as patient's injuries are permanent in nature and any medical treatment he receives will be palliative in nature as a result of the accident of November 10, 2007:" Mr. Jung will have "periodic serious exacerbation of pain and weakness" and will "require lifetime conservative care" and Mr. Jung has "permanent injuries to the cervical and lumbosacral spines, right sholder and right knee" and the injuries "were caused solely by the motor vehicle accident of November 10, 2007 and not from degenerative diseases." Mr. Jung can no longer perform "acts which constitute his customary daily activities since the date of the motor vehicle accident" and such injuries "are permanent in nature" and "have resulted in the permanent consequential limitations of use of a body organ or member" of his neck, back, right shoulder, and right knee.

There is an affirmation of Dr. John Lyons, M.D. relating to the MRI dated January 14, 2008 in which he notes disc bulges at C5-6 and C6-7, and straightening of the lordotic curve "DISC BULGES AT C5-6 AND C6-7. STRAIGHTENING OF THE NORMAL LORDOTIC CURVE WITH AN ASSOCIATED LEVOCURVATURE."; one relating to the MRI dated January 9, 2008 in which he notes "L4-5 AND L5-S1 CENTRAL HERNIATIONS AS DESCRIBED. DISC BULGES AT L2-3 AND L3-4. LEVOCURVATURE."

There is an affirmation of Dr. Richard A. Heiden, M.D. dated January 11, 2008 relating to the MRI of Mr. Jung's right shoulder which revealed a "PARTIAL TEAR SUPRASPINATUS TENDON WITH ENCROACHMENT SYNDROME. INTRASUBSTANCE TEAR SUBSCAPULARIS TENDON."

There is an affirmation of Dr. Jay Grossman, M.D. dated Janurary 10, 2008 relating to the MRI of Mr. Jung's right knee which revealed a "small right knee joint effusion."

HAE SOOK YEO

Ms Yeo testified at her deposition held on February 4, 2009. Ms. Yeo was struck on her right shoulder and her body pushed to the left [26]. She was not bleeding [26] but "momentarily" lost consciousness [27]. She did not use the ambulance[29]. She had pain the next day "[a]ll over, including the neck pain, right should pain, right arm. All over, all over"[31]. She also hit the left side of her leg on the transmission [32]. She was out of work for eight days after the accident and upon her return her work schedule was reduced [35]. Three days after the accident she went to Nair Pain Management near her house [36]. Her compliant was "[t]he neck, the right shoulder, right arm, lower back and both legs" [37]. They sent her for x-rays and three weeks later an MRI [38]. She received ultrasound, acupuncture, chiropractic treatment and massage for six months [44]. The pain initially lessened but has returned [44]. She stopped going or treatment when they told her not to come because the insurance payments had been discontinued [45]. She had acupuncture [47] and had an EMG done to her left arm [52]. She can no longer lift "heavy things" [54] . She can no longer play tennis [57].

There is an affirmation of Dr. Joseph Elfenbein, M.D., a Board Certified Orthopedic Surgeon, dated March 25, 2009 in which he gives his findings of an examination of Hae Sook Yeo. Dr. Elfenbein performed his orthopedic examination of Ms. Yeo's Cervical Spine, Thoracic Spine, Lumbar Spine, Right Shoulder, and Left Shoulder. Dr. Elfenbein's " IMPRESSION: 1. Cervical spine sprain/strain — resolved. 2. Lumbar spine sprain/strain — resolved. 3. Right shoulder sprain/strain — resolved 4. Right knee sprain/strain — resolved." Dr. Elfenbein's " OPINION: There are no objective findings of disability or permanency. The claimant is capable of working without any limitations. There is no need for casually related orthopedic treatment."

The defendants submit an affirmation of Dr. Daniel Feuer, M.D., Board Certified in Psychiatry and Neurology, dated April 23, 2009 in which he gave his findings of an examination made of the plaintiff Hae Sook Yeo on April 21, 2009. Dr. Feuer performed his neurological examination of Ms. Yeo's Head, Cervical Spine, Lubosacral spine, Cranial nerves, Mental status, Motor, Deep tendon reflexes, Sensory examination, Coordination, and Gait. As part of Dr. Feuer's "DIAGNOIS" he stated "Based on a reasonable degree of clinical certainty, I believe the claimant, Hae Sook Yeo does not demonstrate any objective neurological disability or neurological permanency which is related to the reported accident of November 10, 2007. She is neurologically stable to engage in full active employment as well as full activities of daily living without restriction."

The defendants submit three affirmations of Dr. Alan B. Greenfield, M.D., a Board Certified Radiologist, dealing with his findings. Dr. Greenfield's findings presented in his affirmation made April 27, 2009 relying on an MRI of Ms. Yeo's right shoulder performed at Kissena Medical Imaging indicates that Ms. Yeo had no evidence of full thickness tear, bony impingement, labral detachment, fracture, bone marrow edema or replacement, or fluid collection and her biceps tendon was intact. It was Dr. Greenfield's impression that any finding of tendinosis of the distal supraspinatus was longstanding and unrelated to the accident, that any finding of tendinosis of the subscapularis tendon similarly can not be attributed to the accident, and Ms. Yeo had "[n]eutral acromion slope and no signs of bony impingement." On June 27, 2009 Dr. Greenfield looked at an MRI of Ms. Yeo's Cervical Spine performed at Kissena Medical Imaging and executed his affirmation. Dr. Greenfield noted in his "Impression" that Ms. Yeo had straightening of cervical lordosis without torticollis or scoliosis which "maybe constitutional in origin, related to patient positioning within the MR gantry". There was diffuse degenerative disease with "degenerative disc bulging at C3-C4 and C6-C7. These findings are clearly long standing and degenerative, unrelated to the accident." "There are no findings on this study which can be attributed to the accident dated above with any reasonable degree of medical certainty." On the same day, April 27, 2009, Dr. Greenfield looked at the MRI of Ms. Yeo's Lumbar Spine performed at Kissena Medical Imaging. Dr. Greenfield found that Ms. Yeo had Normal lordotic curvature. . It was Dr. Greenfield's impression that Ms. Yeo's lordotic curvature was within limits. The "[d]engenerative disc disease, degenerative disc bulging, and degenerative bony osteophytic ridging is present from L4 through S1 an indicated above, along with a small and likely inconsequential degenerative disc bulge at L2-L3 as well." These findings were u related to the positioning when the MRI was done or "due to restricted range of motion from degenerative boy osteophytic ridging particularly from C5 through C7." He found that his findings were unrelated to the accident. Dr. Greenfield also found that no disc herniations were present.

The plaintiff Hae Sook Yeo submits an affidavit of Dr. David Mun, M.D., sworn to August 14, 2009, in which Dr. Mun presents his medical findings related to the injuries sustained by Hae Sook Yeo. Dr. Mun first saw Ms. Yeo on November 15, 2007 and treated her continuously until February 6, 2008, finally examining her for the purpose of submitting the instant affidavit on July 30, 2009. Dr. Mun found that Ms. Yeo's condition is "permanent and any medical treatments she receives are palliative in nature."

Dr. Mun opined "The symptoms are getting progressively worse. Activities that aggravate the symptoms are standing, bending, lifting, twisting, turning, and coughing. Ms. Yeo stated that she had no difficulty with these symptoms prior to the accident of November 10, 2007."

On November 15, 2007 the following findings were made as to Ms. Yeo's cervical spine. "Cervical flexion — Normal range of motion 45 degrees, today's result: 20 degrees, with pain at the end point; Cervical extension — normal range of motion is 45 degrees, today's result: 20 degrees, with pain at the end point; Cervical left lateral rotation — normal range of motion is 80 degrees, today's result: 70 degrees, pain with movement at end point; Cervical right rotation — normal range of motion is 80 degrees, today's result: 50 degrees, pain with movement at end point."

On July 30, 2009 the findings relating to Ms Yeo were as follows "Cervical flexion — Normal range of motion 45 degrees, today's result: 30 degrees, with pain at the end point; Cervical extension — normal range of motion is 45 degrees, today's result: 40 degrees, with pain at the end point; Cervical right lateral flexion-normal range of motion is 45 degrees, today's result: 40 degrees, with pain at the end point; Cervical left lateral flexion-normal range of motion is 45 degrees, today's result: 40 degrees, with pain at the end point; Cervical left lateral rotation — normal range of motion is 45 degrees, today's result: 40 degrees, with pain at end point. Cervical left rotation — normal range of motion is 80 degrees, today's result: 80 degrees, pain with movement at end point; Cervical right rotation — normal range of motion is 80 degrees, today's result: 80 degrees, pain with movement at end point."

These findings were made with a goniometer. The range of motion was determined by actively moving the affected area by hand to its end range. "The end range is measured objectively via detection of myospasm in the specific plane. It should be noted that subjective patient pain is not a determining factor when measuring specific planar motion."

On November 15, 2007 the following findings were made regarding Ms. Yeo's lumbar spine. "Lumbar flexion — Normal range of motion is 90 degrees, today's result: 40 degrees, pain with movement at end point; Lumbar extension — normal range of motion is 30 degrees, today's result: 0 degrees; left rotation — normal range of motion is 30 degrees, today's result: 10 degrees, pain with movement at end point; right rotation — normal range of motion is 30 degrees, today's result: 10 degrees, pain with movement at end point."

On July 30, 2009 the following findings were made regarding Ms. Yeo's lumbar spine. "Lumbar flexion — Normal range of motion is 90 degrees, today's result: 80 degrees, with pain at end point; Lumbar extension — normal range of motion is 30 degrees, today's result: 20 degrees, with pain at end point; right lateral flexion — normal range of motion is 30 degrees, today's result: within normal limits, with pain at end point; left lateral flexion — normal range of motion is 30 degrees, today's result: 20 degress, with pain at end point."

The tests used to determine the range of motion for the cervical and lumbar spine includes, Shoulder Depression Test, Spurling's Test, Kemp's Test, Straight Leg Raising Test, Laseque's Test, Braggard's Test, Cervical Compression Test, and Cervical Distraction Test.

On November 15, 2007 the following findings were made regarding Ms. Yeo's right shoulder. "Right shoulder flexion — Normal range of motion is 180 degrees, today's result: 160 degrees, pain with movement at end point; right shoulder abduction — normal range of motion is 180 degrees, today's result: 135 degrees, pain with movement at end point. Left shoulder flexion — Normal range of motion is 180 degrees, today's result: 160 degrees, pain with movement at end point. Left shoulder abduction — normal range of motion is 180 degrees, today's result: 160 degrees, pain with movement at end point."

On July 30, 2009 the following findings were made regarding Ms. Yeo's right shoulder. "Right shoulder flexion — Normal range of motion is 180 degrees, today's result: 170 degrees, with pain at end point; right shoulder abduction — normal range of motion is 180 degrees, today's result: 170 degrees, with pain at end point. Left shoulder flexion — normal range of motion is 180 degrees, today's result: within normal range. Left shoulder abduction — normal range of motion is 180 degrees, today's result: 170 degrees, pain with movement at end point."

Dr. Mun referred Ms. Yeo to Kissena Medical Imaging. The MRI of Ms. Yeo's cervical spine performed December 13, 2007 "revealed straightening and a torticollis possibly due to spasm. Central herniations C2-3 and C6-7, Bulges C3-4, C4-5 and C5-6." The examinations performed by Dr. Mun on November 15, 2007 and July 30, 2009 were consistent with these MRI findings. The MRI of Ms. Yeo's lumbar spine performed December 27, 2007 "revealed straightening possibly due to spasm. Bulges L2-3, Right-sided herniatio L4-5, Central herniation L5-S1." The examinations performed by Dr. Mun on November 15, 2007 and July 30, 2009 were consistent with these MRI findings.

"Upon recent examination on July 30, 2009, final diagnosis is as follows: cervical disc herniation. Cervical radiculopathy. Left shoulder pain. Right shoulder rotator cuff tear. Right elbow tendonitius. Low back pain. Lumbar disc herniation. Lumbar radiculopathy."

Dr. Mun stated in his affidavit that Ms. Yeo's prognosis "is guarded at this time." With pain medication and therapy her "pain is under control" but she continues to have a "diminished range of motion." "Her disability is 20%". Based on his examination she is "permanently disabled", and she "is complaining of continuing residual pain in the neck, lower back pain, and right shoulder despite intensive physical therapy, acupuncture, and chiropractic treatments:" "At present time, the patient will not recover fully of the physical limitations, as patient's injuries are permanent in nature and any medical treatment [s]he receives will be palliative in nature as a result of the accident." Ms. Yeo "can expect chronic pain with periodic serious exacerbation of pain and weakness in her neck, back, and right shoulder due to the nature of her injuries causing her to reduce to alter her everyday life style in order to cope with these injuries." Dr. Mun states that Ms. Yeo "will require lifetime conservative care, in addition, she will experience accelerated arthritic changes in her neck, back, and right shoulder due to trauma. However, any medical treatment [s]he receives will be palliative in nature." Ms. Yeo has sustained "permanent injuries to the cervical and lumbosacral spines, and right shoulder" as a result of the accident. There injuries "have prevented [her] from performing may of the material acts which constitute her usual and customary daily activities" since the accident. Dr. Mun notes that Ms. Yeo has sought to return to work by "could not because of pain." Dr. Mun finds that the injuries "are permanent in nature" and have resulted in "the permanent consequential limitation of use of a body organ or member. These injuries have resulted in a permanent consequential limitation of use of the patient's neck, back, and right shoulder. There is a significant limitation of use of the body function or system; more specifically, there is a significant limitation of use of the patient's neck, back, and right shoulder."

There is an affirmation of Dr. Richard A. Heiden, M.D. dated December 13, 2007 relating to the MRI of Ms. Yeo's cervical spine which revealed a "STRAIGHTENING AND A TORTICOLLIS POSSIBLY DUE TO SPASM. CENTRAL HERNIATIONS C2-3 AND C6-7. BULGES C3-4, C4-5 AND C5-6."

There is an affirmation of Dr. Richard A. Heiden, M.D. dated December 27, 2007 relating to the MRI Ms. Yeo's lumbar spine which revealed a "STRAIGHTENING POSSIBLY DUE TO SPASM. BULGE L2-3. RIGHT-SIDED HERNIATION L4-5. CENTRAL HERNIATION L5-S1."

There is an affirmation of Dr. Richard A. Heiden, M.D. dated December 6. 2007 relating to the MRI Ms. Yel's right shoulder which revealed a "HIGH-GRADE PARTIAL TEAR OF THE SUPRASPINATUS TENDON WITH ENCROACHMENT SYNDROME. TENDINOPATHY OF THE SUBSCAPULARIS TENDON. SUBCORACOID BURSAL FLUID."

The thrust of defendants' motion is that neither defendant required an ambulance after the accident and both subsequently sought medical attention some two or more days after the accident when they both went to Nara Pain Treatment Center. And neither sustained serious injury.

In sum, the defendants argue that both plaintiffs have failed to demonstrated the existence of any serious physical injury due to the accident on November 10, 2007.

"Serious Injury" Insurance Law § 5102(d)

In order to maintain an action for personal injury in an automobile case a plaintiff must establish that he has sustained a "serious injury" which is defined as follows:

Serious injury means a personal injury which result in . . . 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 constitutes 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.

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court ( Licari v Elliott, 57 NY2d 230). Initially it is defendants' obligation to demonstrate that the plaintiffs have not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiffs' claim ( Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345; Grossman v Wright, 268 AD2d 79). If the defendants' motion raises the issue as to whether the plaintiffs have sustained a "serious injury" the burden shifts to the plaintiffs to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiffs suffered such injury ( Gaddy v Eyler, 79 NY2d 955; Bryan v Brancato, 213 AD2d 577).

Insurance Law 5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries" ( Toure v Avis Rent-A-Car Systems, Inc., 98 NY2d 345, 350).

Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

Here the defendants have come forward with sufficient evidence to support their claim that the plaintiffs have not sustained a "serious injury" ( Gaddy v Eyler, 79 NY2d 955).

To establish that a plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, that plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration ( Booker v Miller, 258 AD2d 783; Burnett v Miller, 255 AD2d 541). Resolution of the issue of whether "serious injury" has been sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part ( Dufel v Green, 84 NY2d 795). Upon examination of the papers and exhibits submitted this Court finds that each plaintiff has raised triable factual issue as to whether that plaintiff has "permanent consequential" and "significant limitation" categories.

The question presented as to the difference between the measurements of the plaintiff and defendant create an issue of fact for the jury (Martinez v Pioneer Transportation Corp. , 48 AD3d 306).

Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation (Baez v Rahamatali , 24 AD3d 256 aff'd 6 NY2d 868) Adiagnosis of permanency having been sustained by the plaintiff obviates the need for further treatment and, therefore, there is no "gap" in treatment (Pommells v Perez , 4 NY3d 566). Also, a finding by the treating physician that continued treatment would be merely palliative can be considered a sufficient explanation for cessation of treatment ( Toure v Avis RentA Car Systems, 98 NY2d 345; Turner-Brewster v Arce , 17 AD3d 189).

With regard to the 90/180 rule, the defendant's medical expert must relate specifically to the 90/180 claim made by the plaintiff before dismissal is appropriate (See, Scinto v Hoyte , 57 AD3d 646; Faun Thau vButt , 34 AD3d 447; Lowell v Peters , 3 AD3d 778)

Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery, or with intermittent disability for the duration of the plaintiff's life ( Oberly v Bangs Ambulance, Inc., 96 NY2d 295). The finding of "Permanency" is established by submission of a recent examination ( Melino v Lauster, 195 AD2d 653 aff'd 82 NY2d 828). The mere existence of a herniated disc even a tear in a tendon is not evidence of serious physical injury without other objective evidence (Sapienza v Ruggiero , 57 AD3d 643; Piperis v Wan , 49 AD3d 840). Here, each plaintiff has demonstrated through the affidavit of Dr. David Mun, M.D. triable issues of fact as to whether each has sustained such injury.

Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation ( Mickelson v Padang, 237 AD2d 495). The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential" ( Gaddy v Eyler, 79 NY2d 955).

The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration ( Dufel v Green, 84 NY2d 795; Fung v Uddin , 60 AD3d 992; Hoxha vMcEachern , 42 AD3d 433; Barrett v Howland, 202 AD2d 383).

Conflicting affidavits and affirmations establish that issues exist as to whether the plaintiffs' injuries were causally related to the accident as well as the nature and extent of said injuries. ( See, Insurance Law § 5102(d); Toure v Avis Rent A Car Systems, Inc, supra, Positkov v. Krawiec, 6 AD3d 517; Meyer v.Guido, 260 AD2d 556; Jones v. Norwich City School District, 283 AD2d 809; McKinney v Corby, 261 AD2d 454; Wolfram v Vassilou, 239 AD2d 340; Flanagan v Hoeg, 212 AD2d 756).

Again, the affidavit of Dr. Mun, establishes the threshold of significant limitation needed for each plaintiffs to pursue his or her case.

Accordingly the motions made by the defendants to dismiss each of the plaintiff's claim based on the failure to demonstrate "serious injury" as defined in Insurance Law 5102 is denied. Further, based on this, the cross-motion made on behalf of Ms. Yeo is also denied.

So Ordered.