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                            COUNTY OF NASSAU

                 HON. DANIEL PALMIERI
                 Acting Justice Supreme Court
---------------------------------------------------------------------x      TRIAL TERM PART: 48

                                                                            INDEX NO.: 016626/06
                                                                            MOTION DATE:2-28-07
                        -against-                                           SUBMIT DATE:6-4-08
                                                                            SEQ. NUMBER - 001



The following papers have been read on this motion:

        Notice of Motion, dated 1-25-08..........................................1
        Affirmation in Opposition, dated 4-30-08..........................2
        Reply Affirmation, dated 5-30-08.......................................3

        The defendants move for summary judgment dismissing the complaint on the

grounds that the plaintiff has not sustained a serious injury as defined in Insurance

Law § 5102(d), and that the demand for non-economic loss is barred by § 5104(a).

The motion is denied.

         The relevant statutory provisions are as follows:

                § 5104. Causes of action for personal injury
             (a) Notwithstanding any other law, 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 in this state, there shall
             be no right of recovery for non-economic loss, except in
             the case of a serious injury, or for basic economic loss.
             The owner, operator or occupant of a motorcycle which
             has in effect the financial security required by article six or
             eight of the vehicle and traffic law, or which is referred to in
             subdivision two of section three hundred twenty-one of
             such law, shall not be subject to an action by or on behalf
             of a covered person for recovery for non-economic loss,
             except in the case of a serious injury, or for basic
             economic loss injuries, the amount of his basic economic
             loss shall not be recoverable.

The term "serious injury" is defined as follows:

             § 5102. DefinitionsIn this chapter:(d) "Serious injury"
             means a personal injury which results in death;
             dismemberment; significant disfigurement; a fracture; loss
             of a fetus; 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.

      In his bill of particulars the plaintiff asserts that he suffered injuries satisfying

the “permanent consequential limitation of use of body organ or member,”

“significant limitation of use of body function or system,” and “90/180" categories.

The affected parts of the body are alleged to be the cervical and lumbosacral
spines, right knee and shoulder, and right hand. All are alleged to be the result of a

“rear end” collision on the Grand Central Parkway in the vicinity of 188th Street on

January 20, 2006.

        A defendant may raise an issue as to the seriousness of the plaintiff’s injuries
by sworn statements of their own examining physician, or the unsworn reports of the
plaintiff’s treating physician. Pagano v. Kingsbury, 182 A.D.2d 268 (2d Dept. 1992).
If sufficient to raise the serious injury issue, the burden shifts to the Plaintiff to submit
prima facie evidence in admissible form to support the claim. Licari v. Elliot, 57
N.Y.2d 230 (1982). To suffice, the affirmation or affidavit must be based upon the
physician’s own examinations, tests, and observations and record review, and not
simply on the plaintiff’s subjective complaints. Toure v. Avis Rent A Car Sys., 98
N.Y.2d 345 (2002).

       The plaintiff was examined by physicians on behalf of the defendants, and

his medical records referable to the claimed injuries were reviewed. John C.

Killian, M.D. examined Han on 8/20/07. The history and response to questions

were elicited with difficulty because of Han’s limited use of English. But Dr.

Killian also had evaluations of Dr. Pahng, plaintiff’s own treating physician; an

acupuncture evaluation; MRI reports, an orthopedic evaluation by Paul M.

Brisson, M.D; an evaluation and operative report from NYU Hospital for Joint

Diseases where plaintiff under went a cervical discectomy in 2006, performed by

Dr. Yong H. Kim; an orthopedic consultation report from Dr. David T. Neuman; an

operative report from New York Hospital Medical Center of Queens concerning

surgery in 2007; and radiology reviews done by Dr. Sheldon B. Feit on behalf of

the defendants.

       After noting these reports, Dr. Killian set forth the results of his

examination of Han. The plaintiff reported daily neck pain, right arm weakness,

and pain in the mid and lower areas of his back. Muscle groups were

symmetrical, with sensation different in the right upper extremity as compared to

the left. There was no evidence of a limp on ambulation.

      The shoulders evidenced well-healed arthroscopic portals from surgery on

5/7/07. Range of motion testing showed forward flexion of the right shoulder

limited to 160º as opposed to 180º of the left, and external rotation of the right

was limited to 60º versus 80º of the left. The lumbar examination was

unremarkable other than a complaint of pain with full flexion of the back and left

lateral flexion, with no objective signs of restriction of motion or muscle spasm.

He finds mild cervical impairment consistent with surgery to remove the herniated

disc at C5-6 with fusion, but that the restriction is of minimal functional


      Mauro M. Cataletto, M.D., an orthopedist, also examined the plaintiff on

behalf of defendants and reports his findings by report dated October 17, 2007.

Han complained of pain in his neck, weakness of both upper extremities, the right

more than the left, and constant pain in his lower back. Dr. Cataletto concluded

that Han sustained injuries to his cervical spine, lumbar spine, right knee, right

shoulder and right hand at the time of the accident. However, he found no

limitation of range of motion of the cervical spine at the time of the examination

with no neurological deficit.

      He reports the MRI readings of Dr. Feit, on behalf of the Defendants, which

find no traumatic injuries, only degenerative changes to the cervical discs. As to

the lumbar spine, he concludes that Han suffered, at most, soft tissue injury to the

lumbar spine, and the MRI findings are consistent with a long-standing,
pre-existing degenerative process. The same findings of soft tissue injury were

found for his right knee and right hand. The examination of the right shoulder

revealed symmetrical range of motion in both shoulders. He cannot correlate the

present symptoms to the accident of 1/20/06.

      Also submitted are affirmed reviews of films by Dr. Feit, on behalf of the

defendants. There were no discernible abnormalities to the cervical spine shown

on the 1/24/06 plain film. The plain film examination of the thoracic spine of

1/24/06 was normal, and shows no abnormalities. The plain film examination of

the lumbosacral spine shows osteophyte formation, evidence of degenerative

changes, and no abnormalities causally related to the accident. The films of the

left shoulder on 1/24/06 and an MRI of 2/20/06 showed no abnormalities. Mild

impingement on the supraspinatus muscle secondary to hypertrophic changes,

which are degenerative in nature. The right shoulder plain film study of 1/24/06

shows no abnormalities, while the MRI of 2/17/06 was classified as "essentially

normal" with no evidence of impingement on the supraspinatus muscle at the

level of the acromioclavicular joint or coracoacromial arch. The film of the left

hand shows evidence of a prior fracture of the distal radius. Plain film study of

the right knee was normal as was the MRI of 2/21/06.

      The defendants also submit a copy of the plaintiff’s deposition transcript in

support of their contention that he did not sustain an injury that prevented him

from performing substantially all of the material acts that constitutes his normal

and customary activities.

      Based on the foregoing, the Court concludes that the defendants have

made out a prima facie case that the plaintiff did not sustain a “serious injury” as

that term is defined by the Insurance Law, thereby shifting the burden to the

plaintiff to present evidence placing this in issue. However, the Court finds that

the plaintiff’s burden has been met in this case.

         On the day following the accident, Han visited a physician, Sung J. Pahng,

M.D., who has submitted an affirmation chronicling his professional contacts with

Han. On the first visit Dr. Pahng found limited range of motion as compared to

normal of both the cervical and lumbosacral spine. The straight leg raise test was

positive, and he determined that Han had partial disability as he was limited from

performing all normal daily activities. MRI’s on 2/15/06 revealed multiple disc

herniations at L4-5, impinging on the anterior aspect of the spinal canal, and

multiple posterior disc herniations at C3-4, C5-6, with the latter impinging on the

anterior aspect of the spinal cord. An MRI of the right shoulder on 2/17/06

showed acromium impingement on the suprastinatus muscles. On March 3,

3006 Dr. Pahng performed an EMG which indicated left radiculopathy at the C-6


         He continued to see Han through February 2007, and throughout that time

the patient continued to experience loss of range of motion of both the cervical

and lumbar spine, with muscle spasm in the latter area. On 5/3, 5/10 and 5/17/06

he gave Han cervical epidural injections at the C5-6 level. Because of continued

complaints of shoulder pain there was an orthopedic consultation with Dr.

Neuman, who diagnosed a supraspinatus tendon strain and shoulder

derangement, and recommended physical therapy. A third orthopedic

consultation with Dr. Brisson, produced a diagnosis of cervical radiculopathy

secondary to large central disc herniation at C–6, and a recommendation for a

cervical discectomy.

      On 8/17/06 Han underwent the recommended surgery, performed by Dr.

Kim, at NYU Hospital for Joint Diseases. The pre-operative and post-operative

diagnoses were cervical radicular syndrome status post-motor vehicle accident,

resulting in herniated nucleus pulposus of cervical spine, at the C5-6 level.

      Han also underwent right shoulder arthroscopic acrimonoplasty and manipulation

under anesthesia on 5/24/07. An affidavit of a physical therapist, Minsuk Kwak Kim,

P.T., annexed to which are copies of the records for Han, is also included in the

opposition papers. The records reflect limitations in range of motion testing of the

right shoulder and cervical spine on each visit.

      Dr. Pahng opines that throughout the course of treatment, and up to his

recent examination of Han on April 28, 2008, the patient was permanently

disabled and unable to perform the functions associated with his normal daily

activities. These limitations have prevented him from performing substantially all

the material acts which constituted his usual daily activities for at least ninety

days of the first one hundred-eighty days following the accident.

      The physical examination by Dr. Pahng of Han in April, 2008 revealed a

58% loss of cervical extension, 40% loss of cervical flexion, and 44% loss of

lateral bending. The examination of the lumbar spine showed a 20% loss of

extension, and a 33% loss of flexion. These losses are measured as against the

normal ranges. Dr. Pahng classifies these findings as confirmatory of the fact

that Han suffers permanent effects and residuals of cervical herniated discs and

cervical radiculopathy, and is status post-cervical discectomy and fusion, lumbar

disc herniation and right shoulder impingement syndrome. He concludes that this

is a permanent injury to his musculoskeletal system and will prevent him from

performing all activities of daily living without pain.

       He also states his opinion that the injuries are not the result of a preexisting

degenerative condition and that the pain and restrictions of motion did not

hamper Han before the motor vehicle accident. He disagrees with the opinion of

the defendants’ radiological report to the effect that the disc herniations were a

pre-existing condition; but even if that were so, Han was asymptomatic until the

date of the accident. His medical opinion is that Han has suffered a permanent

partial disability with significant limitation of the use of his cervical and lumbar

spine, and right shoulder, which restricts his ability to perform normal everyday


       "In order to prove the extent or degree of physical limitation, and 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 Sys.,

supra, at 350, citing Dufel v. Green, 84 N.Y.2d 795, and Lopez v. Senatore, 65

N.Y.2d 1017. "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.” Id.

       Further, the mere existence of a preexisting condition does not

automatically preclude a determination of serious injury. Where such conditions

are quiescent, and the patient is asymptomatic, the aggravation of those

conditions by the trauma of an automobile collision, if supported by the requisite

objective findings, may constitute serious injury. Mack v. Pullum, 37 A.D.3d 1063
(4 Dept. 2007); Talcott v. Zurenda, 48 A.D.3d 989 (3d Dept. 2008); Bolowske v.
Eastman Kodak Co., 288 A.D.2d 851 (4 Dept. 2001).

       The affirmation of the Plaintiff’s physician, based upon six physical

examinations over the course of 17 months beginning shortly after the accident,

which included findings of limited ranges of motion in the cervical and lumbar

spine, and right elbow, which assigned specific percentages and compared them

to the normal range was adequate to meet the minimal standard to substantiate a
claim of "serious injury". Silva v. Vizcarrondo, 31 A.D.3d 392 (1 Dept. 2006).

This satisfies the well-established standard that the limitation must be more than

slight, and be supported by medical proof based on credible medical evidence of

an objectively measured and quantified medical injury or condition, Gaddy v.

Eyler, 79 N.Y.2d 678 (1987); Licari v. Elliot, 57 N.Y.2d 230 (1982); see also

Picott v. Lewis, 26 A.D.3d 319 (2d Dept. 2006).    In the instant case, the

plaintiff’s proof thus is sufficient even assuming the presence of pre-existing

degenerative disease, as the restrictions may be considered an exacerbation of a

previously quiescent condition.

       The determinations that the X-Rays and MRI’s showed pre-existing

degenerative changes, which are not the result of trauma, may well be accurate.

But where an individual with degenerative spinal changes is asymptomatic until

the time of an accident, he or she may have sustained a "serious injury". In

Talcott v. Zurenda, 48 A.D.3d 989 (3d Dept. 2008) the Court affirmed a monetary

award to a Plaintiff who had been struck in the rear by the Defendant’s vehicle.

Talcott’s orthopedist, Dr. Desai, testified that he diagnosed chronic cervical,

throracic, and lumbar syndrome within one week of the accident. During the

course of treatment over a two-year period, he qualitatively measured range of

motion testing which demonstrated marked restriction of flexion, extension and

rotation compared with normal results. He also opined that the previously

asymptomatic degenerative condition was aggravated by the trauma of the

automobile accident, and it was possible that the patient could have otherwise

remained asymptomatic for the rest of his life. See also, Bolowske v. Eastman
Kodak Company, 288 A.D.2d 851, 852 (4 Dept. 2001); Mack v. Pullum, 37
A.D.3d 1063 (4 Dept. 2007).

       Dr. Pahng states that the limitation of use of a body function or system is

significant. The defendants’ examining physicians claim it is insignificant. Dr.

Pahng’s statement is based on objective medical findings and is not dependent

on subjective complaints of pain made by Han. In addition, Dr. Pahng states that

Han was unable to perform substantially all material acts of his usual daily

activities for 90 of the first 180 days after the accident. Han has testified that he

has not returned to his usual activity of pattern cutter in his wife’s garment

factory, or as a part-time golf instructor since the accident, and there has been

no evidence presented to the contrary.

      The foregoing is thus sufficient to defeat the motion, as the Plaintiff has

raised triable questions of fact on the issues of "significant limitation of use of a

body function or system", "permanent consequential limitation of a body organ or

member", and an injury satisfying the “90/180" category.

      Having met this threshold, it is for the trier of fact to resolve the

diametrically opposed medical opinions and representations by the plaintiff

regarding his limitations and recurring pain.

      Accordingly, the motion to dismiss the complaint is denied.

      This shall constitute the Decision and Order of this Court.


DATED: June 24, 2008
                                                HON. DANIEL PALMIERI
                                                Acting Supreme Court Justice

TO:   Sackstein, Sackstein & Lee, LLP
      Attorneys for Plaintiff
      1140 Franklin Avenue, Ste. 210
      Garden City, NY 11530

      Law Office of John P. Humphreys
      By: Michael T. Reilly, Esq.
      Attorney for Defendant
      3 Huntington Quadrangle, Ste. 102S
      P.O. Box 9028
      Melville, NY 11747


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