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Decided on September 26, 2008
Supreme Court, Kings County

37814/06
ATTORNEYS FOR PLAINTIFFS MANUEL GARCIA and SIRLE GARCIA GRATT & ASSOCIATES P.C 485 LORIMER STREET BROOKLYN, NEW YORK 11211
(718) 963-3339 ATTORNEY FOR DEFENDANT FRANK OPPEDISANO JAMES G. BILELLO & ASSOCIATES 875 MERRICK AVENUE WESTBURY, NEW YORK 11590
(516) 229-4330 ATTORNEYS FOR PLAINTIFF MANUEL GARCIA ON THE COUNTERCLAIM ROBERT P. TUSA 1 METROTECH CENTER, 19TH FLOOR BROOKLYN, NY 11201-0400
(718) 250-0400 Martin Schneier, J.
Plaintiff Sirle Garcia ("Garcia") alleges that as a result of a motor vehicle accident on December 29, 2003 she sustained a serious injury as defined by Insurance Law Section 5102(d), to wit: "a significant limitation of use of a body function or system". Defendant Frank Oppedisano and Manuel Garcia, plaintiff on the counterclaim, (collectively "movants") move for summary judgment on the grounds that plaintiff Sirle Garcia did not suffer a serious injury as defined in Section 5102(d) of the Insurance Law. Movants have the initial burden of making a prima facie showing that the plaintiff did not sustain a serious injury (Kuchero v. Tabachnikov, 2008 NY Slip Op. 06806 [2d Dept, September 09, 2008]; Grossman v. Wright, 268 AD2d 79, 83-84 [2d Dept 2000]). The movants can meet this burden by establishing that the plaintiff has a full range of motion and no disabilities or, by showing that the injuries are not causally related to the accident. If the Court finds that the movants have met their initial burden, the burden shifts to the plaintiff to demonstrate that she has suffered a serious injury (Grossman at 83-84).
Plaintiff was examined by Doctors Spataro and Sharma at the request of defendant. The doctors opined that plaintiff has a full range of motion and no disabilities. The Court finds that the movants have met their prima facie burden of showing that plaintiff has not sustained a serious injury.
The degree or, seriousness, of an injury may be shown in one of two ways. First, "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury" (Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345,350 [2002]) However, the loss of range of motion must have an objective basis. Tests which are in part, dependant on a plaintiff's subjective complaints of pain, will not suffice (Toure at 356). Second, "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system (Toure at350).
Garcia was examined for the first time on December 30, 2003, by Dr. Kushnir. Dr. Kushnir found limitations in Garcia's cervical spine, lumbar spine and shoulders. These limitations, however, were not quantified. The first quantified testing of the plaintiff's range of motion was performed on February 25, 2004 (two months post-accident) by Dr. Benaroya. Dr. Benaroya found that the range of motion in the cervical spine, lumbar spine and shoulders were normal. Garcia relies on the findings of Dr. Paul to establish her serious injury. Dr Paul [*2]examined Garcia for the first time on April 1, 2008, over 4 years after the accident. Dr. Paul found limitations in the plaintiff range of motion for her cervical spine, lumbar spine, right shoulder and limitation in the straight leg raising test.
In light of the fact that Dr. Benaroya's essentially normal examination was significantly closer to the time of the accident, the Court finds that Dr. Paul's report is insufficient to raise an issue of fact regarding the cervical spine, lumbar spine or right shoulder. Dr. Paul also averred that the straight leg raising test was positive at 80 degrees and normal is 90 degrees. This 10 degree loss is neither significant nor consequential (Trotter v. Hart, 285 AD2d 772 [3d Dept 2001]). In addition, Garcia's lengthy gap in treatment, to wit: four years, was not reasonably explained (Kuchero, 2008 NY Slip Op. 06806; Bycinthe v. Kombos, 29 AD3d 845 [2d Dept 2006]). Accordingly, the Court finds that Garcia has failed to raise an issue of fact regarding serious injury due to "significant limitation of use of a body function or system".
Garcia also claims that she suffered a serious injury pursuant to Insurance Law Section 5102(d) due to her inability to perform "substantially all of the material acts which constitute such person's usual and customary activities" for not less than 90 of the 180 days immediately following the date of the accident . In this case, the movants submit the deposition testimony and Bill of Particulars which, indicate that Garcia was confined only to bed for 1 day and confined to her house for 1 month. The Court finds that this is sufficient to meet the movants' prima facie burden. In opposition, Garcia avers that "I experienced much discomfort and pain as a result of this accident during the first three months after the accident, which prevented me from engaging in my usual activities." This statement is conclusory and self serving.
Garcia has failed to proffer any competent medical evidence that she was unable to perform substantiallty all of her daily activities for not less than 90 of the first 180 days subsequent to her accident (Ciordia v. Luchian, 2008 NY Slip Op 06791 [2d Dept, September 09, 2008]).
Accordingly, the motions by the defendant and the plaintiff on the counterclaim are granted and plaintiff Sirle Garcia's complaint is dismissed.
This constitutes the Decision and Order of the Court.

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