Plaintiff sues to recover for personal injury she sustained July 15, 2005, in a car accident between a motor vehicle owned and operated by defendant M and a bus owned by defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority and operated by defendant J, in which plaintiff was a passenger. Defendant M moves, and the Transit Authority defendants cross-move, for summary judgment dismissing the complaint and cross-claims against these defendants, on the ground that plaintiff has not sustained a “serious injury” entitling her to recover for non-economic loss.
For the reasons explained below, the court grants defendants’ motion and cross-motion insofar as they are based on the absence of a serious injury in the categories of a significant limitation or a permanent consequential limitation of functioning. The court denies defendants’ motion and cross-motion as to the category of an impairment that prevented daily activities for 90 of the 180 days after the collision.
I. SIGNIFICANT OR PERMANENT CONSEQUENTIAL LIMITATION
A. DEFENDANTS’ EVIDENCE
Defendants’ physicians examined plaintiff and reviewed her diagnostic studies and other medical records and found full range of motion in her cervical spine, without any neurological or orthopedic abnormalities, obviating a need to comment on her cervical diagnostic studies. While these physicians found restrictions on range of motion in her lumbosacral spine, they concluded those limitations were not attributable to trauma.
Neurologist Dr. RE, MD specifically concludes that the magnetic resonance imaging (MRI) of plaintiff’s lumbar spine conducted August 9, 2005, a few weeks after the collision: Reveals degenerative changes in the lower lumbar area, in keeping with her age, for which there is no traumatic etiology. There is no accident-related neurologic explanation for persistence of her lower back symptoms that are more likely to be related to the presence of preexisting spondylosis of the lower lumbar spine independent of the subject accident.
The combined findings by defendants’ physicians demonstrate plaintiff did not sustain a permanent or significant limitation in functioning of her spine.
B. PLAINTIFF’S REBUTTAL
Plaintiff’s physician, Dr.H, M.D. began treating plaintiff August 31, 2005, when he found weakness, diminished reflexes, spasm, and tenderness in her lumbosacral spine. In a report dated November 20, 2007, Dr. H found a 28% restriction in range of motion in two planes of her lumbosacral spine. Based on review of electrodiagnostic studies of her lumbosacral spine, Dr. H diagnosed plaintiff with a L4–L5 disc herniation and related radiculopathy, which he concluded were caused by the July 2005 collision and permanent.
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