WILLIAMS v. ELZY

Full title: SANDRA WILLIAMS Plaintiff, -against- SIDNEY ELZY, Defendant

Court: United States District Court, S.D. New York

Date published: Sep 23, 2003

00 Civ. 5382 (HBP) (S.D.N.Y. Sep. 23, 2003)

Opinion

00 Civ. 5382 (HBP)

September 23, 2003

OPINION AND ORDER

HENRY PITMAN, Magistrate Judge

I. Introduction

This action arises out of an automobile accident that occurred in Manhattan on February 1, 1999. Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56, dismissing plaintiff's claim for non-economic loss on the ground that there is insufficient evidence to give rise to a genuine issue of fact that plaintiff has suffered a "serious injury" as that term is defined by New York Insurance Law § 5102(d). All parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636 (c).

For the reasons set forth below, defendant's motion is granted in part and denied in part.

II. Facts

On February 1, 1999, at approximately 12:40 P.M., at the intersection of West 149^th and St. Nicholas Avenue in Manhattan, a car owned by plaintiff Sandra Williams and operated by Samuel Crump was struck by a car owned and operated by defendant Sidney Elzy (Complaint, ¶¶ 7-12). Plaintiff alleges she was a passenger in her car at the time of the accident (Complaint, ¶ 10).

Immediately after the collision, plaintiff did not go to any hospital, nor did she request any medical assistance at the scene of the accident (Sandra Williams' Deposition ("Williams' Dep.") at 42, annexed as Ex. B to Answering Affirmation of Michael D'Agostino, dated to Nov. 22, 2002 ("D'Agostino Aff.")). The police arrived at the scene and completed an accident report. Plaintiff then drove to her home in New Jersey (Williams' Dep. at 42).

On March 14, 1999, six weeks after the accident, plaintiff met with Dr. Louis R. Beato, a chiropractor licensed by the state of New Jersey. (Affirmation of Dr. Louis Beato, sworn to Nov. 20 1999 ("Beato Aff.") at 1, annexed as Ex. C to D'Agostino Aff.). Plaintiff complained of "headaches, neck pain, stiffness, bilateral shoulder pain, back pain, sleeping problems, and pins and needles in arms and legs" (Beato Aff. at 1).

Dr. Beato stated in his affirmation that he performed an orthopedic examination which revealed that plaintiff's cervical motion was limited to 50% of normal in all planes (Beato Aff. at 1). A lumbar spine examination revealed that plaintiff's range of motion in that region was limited to 60% (Beato Aff. at 2). Dr. Beato examined and tested plaintiff and concluded that the results of all tests indicated (1) acute severe post traumatic cervical sprain, (2) acute severe post traumatic thoracic sprain, (3) acute severe post traumatic lumbar sprain, (4) right C7 radiculopathy, confirmed by EMG test done on June 9, 1999, (5) right carpal tunnel syndrome, also confirmed by the EMG test done on June 9, 1999, (6) posterior disc bulge at L4-L5, facet hypertrophy and encroachment upon the neural foramina at L4-L5 and L5-S1, and a disc bulge at C3-C4, all confirmed by an MRI performed on May 10, 1999 (Beato Aff. at 2).

Dr. Beato noted in his affirmation that plaintiff's activities of daily living were affected by the neck and back pain and that plaintiff had to perform those activities in an adaptive, abbreviated manner to compensate for her loss of function in her neck and back (Beato Aff. at 2). Dr. Beato treated plaintiff from April 14, 1999 until June 29, 1999, and he noted that throughout the course of treatment, she complained of painful and limited motion of the spine with persistent muscle spasms (Beato Aff. at 2).

Dr. Beato opined that plaintiff has a permanent loss of range of motion in the cervical and lumbar spine as a result of the injuries sustained in the car accident. Due to the severe and permanent nature of the injuries, Dr. Beato noted plaintiff may develop further problems (Beato Aff. at 3).

Plaintiff testified in her deposition that she missed three months of work as a home health aide as a result of her injuries (Williams' Dep. at 50). Plaintiff also testified that when she had returned to work, she was unable to perform many of the duties that she performed prior to the accident, such as lifting and bathing patients (Williams' Dep. at 54).

III. Analysis

A. Summary Judgment Standard

The standards applicable to a motion for summary judgment are well-settled and require only brief review.

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(c). In deciding such a motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-movant's favor. Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995). Hemphill v. Schott, 141 F.3d 412, 415 (2d Cir. 1998). See also Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997).

Once the moving party has met its initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party, in order to defeat the motion, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party "must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986).

B. Defendant's Motion

Because the Court's jurisdiction in this matter is based on diversity of citizenship, New York substantive law governs this action. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). New York's "no fault" insurance law restricts recovery for non-economic injuries sustained in motor vehicle accidents such as the one at issue here. Specifically, New York Insurance Law § 5104(a) provides:

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.

Plaintiff has not submitted any evidence to indicate that she is seeking damages for economic loss greater than "basic" economic loss, which is defined as economic loss of up to fifty thousand dollars per person of medical expenses, lost wages or other "reasonable and necessary expenses" of up to twenty-five dollars per day for not more than one year after the accident. New York Insurance Law § 5102(a). Thus, the damages¹ sought by plaintiff are exclusively for "non-economic" loss which are defined by New York Insurance Law § 5102(c) as "pain and suffering and similar non-monetary detriment." Accordingly, Section 5104(a) requires that a plaintiff show that she has suffered "serious injury" before she can recover such non-economic losses.

1 Plaintiff seeks five hundred thousand dollars in damages resulting from the accident (Complaint, ¶ 28).

"Serious injury" is defined as:

[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.

New York Ins. Law § 5102(d).

Whether there is sufficient evidence to create a material question of fact as to the existence of serious injury may be decided by a court on summary judgment. Licari v. Elliott, 57 N.Y.2d 230, 238, 441 N.E.2d 1088, 1091, 455 N.Y.S.2d 570, 573-74 (1982). See also Rosas v. Hertz Corp., 96 Civ. 7165 (MBM), 1997 WL 736723 at *1 (S.D.N.Y. Nov. 24, 1997).

The Honorable Denise L. Cote, United States District Judge, explained the relationship between Rule 56 and the issue of serious injury as defined in New York's Insurance Law in Morrone v. McJunkin, 98 Civ. 2163 (DLC), 1998 WL 872419 at *2 (S.D.N.Y. Dec. 15, 1998):

On summary judgment, a defendant must establish a prima facie case that plaintiff's injuries were not serious and then the burden shifts to plaintiff. See Gaddy v. Eyler, 79 N.Y.2d 955, 582 N.Y.S.2d 990, 991, 591 N.E.2d 1176 (N.Y. 1992). For plaintiff to defeat a summary judgment motion, admissible evidence must be presented in the form of sworn affidavits by physicians.

(citations omitted). See also Khouzam v. Zalesky, 93 Civ. 6360 (LMM), 1996 WL 79882 at *4 (S.D.N.Y. Feb. 26, 1996) ("As is true in any summary judgment motion, the defendant must present admissible evidentiary material indicating that the plaintiff cannot establish serious injury."); Pichardo v. Chesley, 92 Civ. 5422 (KMW), 1994 WL 369281 at *1 (S.D.N.Y. July 12, 1994) ("On a motion for summary judgment for failure to meet the `serious injury1 threshold, defendants bear the burden of presenting evidence, in admissible form, to warrant a finding as a matter of law that plaintiffs have not suffered a serious injury.").²

2 In Celotex Corp. v. Catrett, supra, 477 U.S. 317 at 322-23, the Supreme Court held that summary judgment may be granted where the movant simply demonstrates an absence of sufficient evidence in the record to give rise to a question of fact regarding an essential element to plaintiff's claim with respect to which the non-movant bears the burden of proof. Thus, under a strict Celotex approach, it would appear that summary judgment could be granted on the issue of serious injury, even if the defendant offers no medical evidence of its own, so long as plaintiff's evidence is insufficient to establish a triable issue of fact as to whether he or she has sustained a serious injury. The cases in this Circuit do not address this tension between Licari and its progeny on the one hand and Celotex on the other. In fact, the weight of authority appears to follow Licari without discussion. See Altman v. Bayliss, 95-CV-0734, 1999 WL 782338 at *5 (W.D.N.Y. Sept. 30, 1999) ("[A] court must decide whether the defendant has established a prima facie case that plaintiff's injuries [are] not serious within the meaning of Section 5102(d)."); Morrone v. McJunkin, supra, 1998 WL 872419 at *2; Yanez v. City of New York, 29 F. Supp.2d 100, 113 (E.D.N.Y. 1998) ("[T]o be entitled to summary judgment, it is defendant's burden to put forward sufficient evidence that the plaintiff did not suffer `serious injury'."); Jackson v. Greyhound Lines, 96 Civ. 7431 (JGK), 1998 WL 355423 at *3 (S.D.N.Y. July 2, 1998) ("Under the requirements of the Insurance Law, once the defendants have presented a prima facie case that plaintiff has not suffered a "serious injury" as defined by § 5102(d), [the burden shifts to plaintiff]."); George v. Thomas, 888 F. Supp. 41, 43 (S.D.N.Y. 1995) ("If the defendant sustains its burden of submitting evidentiary material indicating that the plaintiff cannot establish `serious injury' within the meaning of the statute, the case will be dismissed unless the plaintiff comes forward with evidentiary material sufficient to raise a genuine issue for trial.");Janssen v. Weissman, 91 Civ. 0313 (RWS), 1994 WL 119017 at *2 (S.D.N.Y. Apr. 4, 1994) ("[T]he defendants on a summary judgment motion must first present evidence establishing that plaintiff has not sustained a `serious injury' as a matter of law."). Given the weight of authority followingLicari and the absence of authority to the contrary, I shall apply theLicari test in this case.

Where, as here, a plaintiff is relying on expert opinion to give rise to an issue of fact as to the existence of a serious injury, the opinion must be supported by objective tests.

This Court has long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries" (Dufel v. Green, 84 N.Y.2d 795, 798 [1995]; see also Licari v. Elliott, 57 N.Y.2d 230, 234-235 [1982]). As such, we have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold (see e.g. Dufel, 84 N.Y.2d at 798; Lopez v Senatore, 65 N.Y.2d 1017, 1020 [1985]); subjective complaints alone are not sufficient (see e.g. Gaddy v. Eyler, 79 N.Y.2d 955, 957-958 [1992]; Scheer v. Koubek, 70 N.Y.2d 678, 679 [1987]). In order to prove the extent or degree of physical limitation, 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 (see e.g. Dufel, 84 N.Y.2d at 798; Lopez, 65 N.Y.2d at 1020). 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 (see Dufel, 84 N.Y.2d at 798). When supported by objective evidence, an expert's qualitative assessment of the seriousness of a plaintiff's injuries can be tested during cross-examination, challenged by another expert and weighed by the trier of fact. By contrast, an expert's opinion unsupported by an objective basis may be wholly speculative, thereby frustrating the legislative intent of the No-Fault Law to eliminate statutorily-insignificant injuries or frivolous claims.

Toure v. Avis Rent A Car Systems. Inc., 98 N.Y.2d 345, 350-51, 774 N.E.2d 1197, 1199-1200, 746 N.Y.S.2d 865, 867-68 (2002); accord Bewry v. Colonial Freight Sys., 01 Civ. 5634 (JCF) 2002 WL 31834434 at *2-*3 (S.D.N.Y. Dec. 17, 2002).

Defendant contends that summary judgment is warranted because there is no genuine issue of fact as to whether plaintiff has suffered a serious injury. In support of his motion, defendant has offered his own doctors' sworn reports regarding the plaintiff, which state that plaintiff is not suffering from any disability (Alien Aff., Ex's. D, E). Since defendant has established a prima facie case that plaintiff has not suffered a serious injury under at least one of the applicable statutory grounds, the burden of proof then shifts to the plaintiff to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 250. As explained below, the Court finds that plaintiff has met this burden in part and has failed in part.

As noted above, Section 5102(a) of the New York Insurance Law provides several alternative definitions of a "serious injury," three of which plaintiff claims are relevant here: (1) a "permanent consequential limitation of use of a body organ or member;" (2) a "significant limitation of a body function or system," and (3) "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 the usual and customary daily activities for not less tha[n] 90 days of 180 days immediately following the occurrence of the injury or impairment" (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated Nov. 22, 2002 ("Plaintiff's Mem.") at 4). For the reasons set forth below, I find that plaintiff has failed to establish a genuine issue of fact as to the first alternative, but has succeeded as to the second and third alternatives.

Before addressing how the evidence in the record gives rise to a genuine issue of fact as to two of the three foregoing alternatives, I shall first address defendant's arguments that are applicable to all three alternative definitions.

1. Sufficiency of Plaintiff's Evidence

a. Admissibility of Dr. Beato's Affirmation

Defendant first contends that Dr. Beato's affirmation cannot be considered because it is not in the form of an affidavit sworn to before a notary public (Alien Reply Affirmation, dated December 3, 2002 ("Alien Reply Aff.), at 4-5). Defendant's argument overlooks the fact that this action has been brought in Federal Court, and thus, federal procedural and evidentiary law apply here. See Hanna v. Plumer, 380 U.S. 460, 465 (1965); Nasrallah v. Helio De, No. 96 Civ. 8727 (SAS), 1998 WL 152568 at *7 (S.D.N.Y. April 2, 1998); Citron v. Citron, No. 00 CV 0815, 2002 WL 32096588 (E.D.N.Y. Oct. 5, 2002).

28 U.S.C. § 1746 provides that unsworn declarations made under the penalty of perjury have the same evidentiary weight as affidavits. Specifically, Section 1746 provides that in order to have the same weight as an affidavit, an unsworn declaration must contain language in substantially the same form as "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct" followed by a signature and date of execution. Here, the chiropractor's affirmation provides "Dr. Louis R. Beato, affirms the following under penalty of perjury as follows. . . ." This language is sufficiently similar to the language prescribed in Section 1746, arid is sufficient to render Dr. Beato's affirmation admissible as an affidavit.

b. Dr. Beato's Reliance upon Unsworn Reports

Defendant also argues that it was improper for Dr. Beato to rely on the MRI and EMG reports in his report, stating "Dr. Louis Beato admits . . . that he reviewed and relied upon the findings made in the unsworn medical reports of Drs. Ahsan Zafar, M.D., and Peter J. Jaffe, D.C. The law is well settled in New York that reliance upon unsworn medical reports of other chiropractors (or even physicians) is not proper in the context of opposing a threshold summary judgment motion." (Alien Reply Aff. at 7). Again, defendant has failed to review the applicable provisions of the Federal Rules of Evidence.

The same argument was made and rejected in Nasrallah for reasons that are equally applicable here:

Defendants assert that [plaintiff's doctor's] opinion is not competent evidence because he did not actually view the MRI scans but rather relied on the unsworn report of another doctor . . . There is nothing improper about this. [Plaintiff's doctor's] testimony is expert testimony, and as such it may be based on facts "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," and these facts "do not need to be admissible in evidence." Fed.R.Evid. 703. An expert may rely, as here, on hearsay if it is common in his field to do so. See United States v. Locascio, 6 F.3d 924, 928 (2d Cir. 1993). Certainly it is common for treating physicians to rely on the interpretive reports of radiologists in making diagnoses without viewing the underlying scans themselves or requiring the radiologists to file affidavits.

Nasrallah v. Helio De, supra, 1998 WL 152568 at *7.³

3 It should be noted that even if the inadmissibility of the MRI and EMG reports were fatal to plaintiff's action, I would be inclined to allow plaintiff to resubmit the evidence in admissible form. Courts in the Second Circuit have generally declined to dismiss an action on "mere technicalities." Citron v. Citron, supra, 2002 WL 32096588 at *3 ("Plaintiffs have not proffered any evidence in admissible form to rebut Defendants' allegations that Plaintiffs have not satisfied the statutory definition of `serious injury.' This Court, however, is reluctant to dismiss this action on mere technicalities.") (citation omitted); see also Nasrallah v. Helio De, supra, 1998 WL 152568 at *4 (On summary judgment motion on issue of serious injury, stating "the Court is unwilling to throw out plaintiffs' case based upon what may very well be a good faith misunderstanding of plaintiffs' counsel as to what constitutes admissible, as opposed to sufficient, evidence to create a material fact in dispute.").

2. Plaintiff's Claimed "Serious Injury"

a. Permanent Consequential Limitation

Plaintiff first claims that the evidence would support a finding of serious injury on the basis of a "permanent consequential limitation of a body function or system" (Plaintiff Mem. at 4). Defendant argues that plaintiff cannot proceed on this theory because the only objective evidence submitted by plaintiff is Dr. Beato's affirmation based on an outdated examination (Alien Reply at 8).

New York Courts have held that physicians' affidavits based solely on examinations that are remote in time are insufficient to defeat a motion for summary judgment where the plaintiff claims a permanent injury. As the Second Department has explained:

[T]he testimony of the injured plaintiff's treating physician was insufficient, as a matter of law, to demonstrate that the injured plaintiff suffered a permanent injury to his back. The treating physician last saw the injured plaintiff more than two years before trial, and her "projections of permanent limitations have no probative value in the absence of a recent examination" (Evans v Mohammad, 243 A.D.2d 604, 605; see Mohamed v Dhanasar, 273 A.D.2d 451; Smith v Askew, supra, Kauderer v Penta, supra).

Bidetto v. Williams, 276 A.D.2d 516, 517, 713 N.Y.S.2d 764, 765 (2d Dep't 2000); see also Khouzam v. Zalesky, supra, 1996 WL 79882 at *6 (doctor's affidavit based on examination that was "almost three years old" was insufficient to defeat summary judgment); Kauderer v. Penta, 261 A.D.2d 365, 689 N.Y.S.2d 190, 191 (2d Dep't 1999) (affidavit based on examination performed almost three years earlier was inadequate to defeat summary judgment); Thomas v. Roach, 246 A.D.2d 591, 591, 667 N.Y.S.2d 296, 296 (2d Dep't 1998) (affidavit based on an examination which had taken place more than two years earlier was insufficient to defeat motion for summary judgment).

Dr. Beato's affirmation is the only admissible objective medical evidence offered concerning the permanence of plaintiff's injuries, and it is based on treatment and examinations which took place more than three (3) years before the instant petition was served. There is no suggestion in the record that Dr. Beato has examined plaintiff since that time. Therefore, his affirmation, like those described in Bidetto, Khouzam, Kauderer andThomas, is too old to support plaintiff's claim of permanent injury in the face of the affidavits from defendant's doctors, which are based on recent examinations. Accordingly, defendant's motion is granted with respect to plaintiff's claim of a "permanent consequential limitation."

b. Significant Limitation

Plaintiff next claims that the evidence is sufficient to give rise to a genuine issue of fact as to whether she suffered a "serious injury" on the basis of a "significant limitation of a body function or system." Defendant's papers do not specifically address this argument.

Most attempts by courts and commentators to define "significant limitation of a body function or system" have added little meaning to the words of the statute. For example, the authors of New York's Pattern Jury Instructions define "significant limitation" as follows:

A limitation of use of a body function or system means that the function or system does not operate at all or operates only in some limited way. [In order for there to be a significant limitation,] [i]t is not necessary . . . that there [be] a total loss of the body function or system or that the limitation of use is permanent. However, the limitation of use must be significant, meaning that the loss is important or meaningful. A minor, mild or slight limitation of use is not significant.

1A New York Pattern Jury Instructions — Civil Instruction 2:88E (3rd ed. 2002).

A Magistrate Judge in this Court has defined a "significant limitation" as follows:

Whether the limitation is "significant" "`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.'" [Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 353, 774 N.E.2d 1197, ___, 746 N.Y.S.2d 865, 869 (2002)](quoting Dufel, 84 N.Y.2d at 798, 622 N.Y.S.2d at 901, 647 N.E.2d 105); see also Madden v. Lee, No. 01 Civ. 7856, 2002 WL 31398951, at *5 (S.D.N.Y. Oct. 25, 2002). A "minor, mild or slight" limitation does not constitute a serious injury. Licari v. Elliott, 57 N.Y.2d 230, 236, 455 N.Y.S.2d 570, 573, 441 N.E.2d 1088 (1982).

Bewry v. Colonial Freight Sys., Inc., supra, 2002 WL 31834434 at *3.

The Second Department has been similarly stymied, stating that a "significant limitation" does not require permanence but must rise to the level of significance:

The essential difference between these two types of "serious injury" is that the "significant limitation of use of a body function" does not require permanence, but instead requires a fact finding on the issue of whether the dysfunction is important enough to reach the level of significance. Similarly, the "permanent loss of . . . a body . . . function" does not involve in any fashion the element of significance, but only that of permanence. Indeed, if it did, there would be no need to list "significant limitation of use of a body function" in a separate category."

Miller v. Miller, 100 A.D.2d 577, 578, 473 N.Y.S.2d 513, 514 (2d Dep't 1984) (emphasis in original).

Probably the most helpful explanation of the concept of "significant limitation" was set forth by former District Judge Sotomayor in Nasrallah v. Helio De, supra, 1998 WL 152568 at *5:

In order to be a significant limitation, the limitation must be something more than a "minor, mild or slight limitation of use." Licari, 57 N.Y.2d at 236, 455 N.Y.S.2d at 573, 441 N.E.2d 1088. Nor can the plaintiff's subjective pain, standing alone without objective indicia, constitute a significant limitation. See Scheer v. Koubek, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788, 788, 512 N.E.2d 309 (1987); cf. Licari, 57 N.Y.2d at 239, 455 N.Y.S.2d at 574, 441 N.E.2d 1088 ("We do not believe the subjective quality of an ordinary headache falls within the objective verbal definition of serious injury"). "Whether a limitation of use or function is `significant' or `consequential' . . . relates to medical significance and 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 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 902, 647 N.E.2d 105 (1995). At least one department of the Appellate Division has held that significance also entails an assessment "not only of the extent or degree of the limitation but of its duration as well." McCleary v. Hefter, 194 A.D.2d 594, 594, 599 N.Y.S.2d 81, 82 (2d Dep't 1993); Partlow v. Meehan, 155 A.D.2d 647, 548 N.Y.S.2d 239, 240 (2d Dep't 1989); see also Nathanson v. David, 665 N.Y.S.2d 148, 148 (4th Dep't 1997) (significance of limitation can only be determined after development of facts at trial, "including the duration of the limitation").

Nasrallah involved a claimed injury remarkably similar to that alleged here. In Nasrallah, plaintiff's doctor concluded that plaintiff was suffering from a bulging lumbar disc and that plaintiff's range of motion was limited to 60% of normal in the lumbar region and 50% of normal in the cervical region. The doctor's opinion, like Dr. Beato's opinion here, was based on an MRI and his own examination of plaintiff. Nasrallah v. Helio De, supra, 1998 WL 152568 at *6. Judge Sotomayor found that this evidence was sufficient to create a triable issue of fact concerning the degree of limitation:

The extent of this limitation is clearly not "minor or mild" and is well within the range of movement limitations found by many New York courts to satisfy the definition of significance. For example, in Grullon v. Chu, 657 N.Y.S.2d 776 (2d Dep't 1997), the Appellate Division held that a physician's affidavit "conclud [ing], based upon his examinations of the plaintiff and a review of her medical records, that she had restricted motion of her lumbosacral spine of 35 to 40 degrees and that such limitation was significant and permanent . . . was sufficient to establish prima facie that the plaintiff suffered a serious injury." Id. at 776. [Plaintiff's] reports are virtually identical to that in Grullon. Nor does Grullon by any means stand alone. See Lopez v. Senatore, 65 N.Y.2d 1017, 1020, 494 N.Y.S.2d 101, 102, 484 N.E.2d 130 (1985) (physician's opinion that limitation of neck movement of 10% was significant precluded summary judgment for defendants); Amofa v. N.S.C. Leasing Corp., 1998 WL 72187, at *1, 1998 N.Y.App. Div. Lexis 1521, at *1 (1st Dep't 1998) (25% loss of spinal range of motion significant); Livai v. Amoroso, 658 N.Y.S.2d 973, 973 (2d Dep't 1997) (20% restriction of motion significant); Zalduondo v. Lazowska, 234 A.D.2d 455, 455-56, 651 N.Y.S.2d 117, 118 (2d Dep't 1997) (physician's opinion that bulging cervical disc was significant sufficient to preclude summary judgment); Parker v. DeFontaine-Stratton, 231 A.D.2d 412, 413, 647 N.Y.S.2d 189, 190 (1st Dep't 1996) (10 degrees of flexion, 40 degrees of abduction significant); Mancusi v. McDonald, 203 A.D.2d 146, 146, 610 N.Y.S.2d 237, 238 (1st Dep't 1994) (60 degrees limitation of rotation significant). See also Khouzam, 1996 WL 79882, at *5, 1996 U.S. Dist. Lexis 2125, at *15 ("Generally . . . where medical records indicate specific measurements of limited movement, courts have found a triable issue as to whether there is a significant limitation.")

Nasrallah v. Helio De, supra, 1998 WL 152568 at *6; see also Bewry v. Colonial Freight Sys., supra, 2002 WL 318344344.

In this case, Dr. Beato's affirmation, based upon the MRI results and his own examination, found that plaintiff had a disc bulge at C3-C4, a limitation of movement in the cervical region at the time of his examination of 50% in all planes in either direction, and a range of motion in the lumbar region limited to 60% of normal, among other injuries (Beato Aff. at 2-3). Nasrallah teaches that if credited by the jury, this evidence is sufficient to establish the degree of limitation necessary to constitute a "significant limitation."

The claimed duration of plaintiff's lost range of motion also contributes to the significance of the claimed limitation. Plaintiff has offered a declaration from Dr. Beato, in which he concludes, based on his examination and objective tests, that plaintiff suffered a 50% loss of range of motion in the cervical region and a 40% loss of range of motion in the lumbar region for at least five months.⁴ Given the level of restriction claimed and the important role the back plays in the activities of daily living, limitations of this duration could be found to constitute a significant limitation. Nasrallah v. Helio De, supra, 1998 WL 152568 (evidence that 40% loss range of motion in lumbar region lasted nine months sufficient to create genuine issue of fact); Hayes v. Riccardi, 97 A.D.2d 954, 954, 468 N.Y.S.2d 748, 749 (4th Dep't 1983) (60% loss of range of motion in cervical region lasting for unspecified period between four days and fifteen months sufficient to create genuine issue of fact).

4 Dr. Beato opined that the injuries were permanent, but, according to his declaration, he stopped treating plaintiff five months after the accident (Beato Aff. at 2).

Since plaintiff has offered evidence which, if credited, would establish a substantial loss of range of motion for a considerable period of time, she has offered sufficient evidence to give rise to a genuine issue of fact concerning whether she suffered a "significant limitation" sufficient to constitute a "serious injury."

c. 90 of 180 Days

Plaintiff's final argument is that her injury prevented her "from performing substantially all of the material acts which constitute the usual and customary daily activities for at least 90 days of 180 days immediately following the [accident]" (Plaintiff Mem. at 4). Defendant contends that Dr. Beato's affirmation is "insufficient to establish the existence of [such injury]" because "Dr. Beato never identifies any specific activities that plaintiff was prevented from performing due to injuries" (Alien Reply Aff. at 9).

Dr. Beato stated in his affirmation that plaintiff's "painful limitation of operation of the spine has and will continue to restrict this patient in normal activities." (Beato Aff. at 3). He also stated, " [P]atient ['s] neck and back pain was clearly affecting her on a daily basis. She had to perform her daily routine in an adaptive, abbreviated manner to compensate for her loss of function in her neck and back" (Beato Aff. at 2). Further, in her deposition, plaintiff testified that she did not return to work for 3 months after the accident, and that when she did return, she worked less. She also testified that she is no longer able to do strenuous work, such as lifting patients⁵ or carrying laundry, as a result of the accident (Williams' Dep. at 54-55).

5 Plaintiff was a "self employed" "special care assistant" (D'Agostino Aff. at 1-2). Her duties prior to the accident included lifting and bathing patients, but after the accident she claims she could only perform "light work" such as cooking, cleaning the house and running errands for patients (Williams' Depo. at 18).

In most cases where courts have found the plaintiff was not prevented from performing activities of daily living, the plaintiff had generally missed less than a month of work and there was no evidence that "substantially all" of plaintiff's daily activities were limited. See Licari v. Elliott, supra, 57 N.Y.2d at 238, 441 N.E.2d at 1092, 455 N.Y.S.2d at 574, (no serious injury where plaintiff returned to work 24 days after the accident and worked 12 hour days for 6 days a week as a cab driver); see also Gaddy v. Eyler, 79 N.Y.2d 955, 958, 591 N.E.2d 1176, 1178, 582 N.Y.S.2d 990, 992 (1992) (no serious injury where plaintiff missed two days of work, and then returned to her normal job activities upon her return); Looney v. Epervary, 194 A.D.2d 591, 591, 599 N.Y.S.2d 989, 990 (2d Dep't 1993) (no serious injury where plaintiff missed three days of work); Estrada v. Holmes, 183 A.D.2d 436, 436, 583 N.Y.S.2d 273, 274 (1st Dep't 1992) (loss of one day of work, followed by a resumption of regular work schedule, did not constitute "serious injury").

Here, plaintiff has missed three months of work in the six months following the accident. Defendant has not offered any evidence that plaintiff was able to carry out her activities of daily living. Thus, defendant has failed to establish a prima facie case that defendant does not meet the criteria for "90 of 180 days." Accordingly, there is a triable issue of fact as to whether plaintiff suffered a serious injury within the meaning of this third, alternative definition.

IV. Conclusion

For all the foregoing reasons, defendant's motion for summary judgment is granted in part and denied in part. Defendant's motion is granted to the extent plaintiff alleges a serious injury based on a "permanent consequential limitation." In all other respects, defendant's motion is denied.