Insurance Law §5102(d) is part of the New York State No-Fault Law that was
adopted by the Legislature to effect changes in the common law tort system of
compensating automobile accident claimants. (Insurance Law, art 18, L 1973, ch
13, §1; Montgomery v Daniels, 38 NY2d 41, 49-53 ). Any injury
not falling within the statutory definition of serious injury is considered
minor and no trial is permitted under the no-fault system. It is claimant's
burden to make a threshold showing that he or she sustained a serious injury as
defined by Insurance Law §5102(d) (Licari v Elliott, 57 NY2d 230,
235 ). Here, claimants allege that they each suffered a "significant
limitation of use of a body function or system," specifically Gerald Greeno's
cervical and lumbar spine and Marieta Greeno's cervical spine.
Injuries of Gerald Greeno:
Following the accident, claimant Gerald Greeno went to Alice Hyde Hospital, at
which time x-rays of his lumbar and cervical spine were taken. Although
preexisting signs of wear were noted (mild scoliosis in the lumbar spine and
moderate degenerative changes in the cervical spine), no acute abnormalities or
fractures were found (Cagino affirmation, Exhibit B). On September 22, 1999,
four days after the accident, Mr. Greeno was seen by his primary care physician,
Dr. Anjni Bhagat, and on referral, by Dr. Hargraves, a neurosurgeon.
In an affirmation submitted in opposition to the instant
There is some merit, however, to
defendant's argument that many of the statements made by Dr. Bhagat rely
entirely on the unsworn records of unidentified persons. For the purposes of
this motion, however, the Court will assume that, if requested to do so,
claimants' counsel could obtain the information on which Dr. Bhagat relied in
proper, admissible form and thus support the statements in Dr. Bhagat's
affirmation. Dr. Bhagat reported that when he first examined Mr. Greeno after
the accident, he determined that claimant was suffering from "multiple
contusions with back and neck strain" and that he had a decreased range of
motion in his neck, being unable to flex it fully (Bhagat affirmation,
¶17). By the next visit on September 28, 1999, when his condition was
essentially unchanged and he was continuing to have muscle spasms, Dr. Bhagat
prescribed physical therapy. An MRI of the lumbar spine was performed, and Mr.
Greeno received physical therapy for approximately two months. At a follow-up
visit in November, Mr. Greeno was still "extremely stiff with aches and pains
all over" (id.
¶ 20). In January 2000, he reported that he didn't
believe physical therapy was helping him, but the following month he stated that
the symptoms appeared to be improving. Physical therapy continued at least
through May 2000. At that time, according to Dr. Bhagat, Mr. Greeno was still
having severe back pain and unable to drive for long distances. Over a year
after the accident, in November of 2000, was the last time that the physician
treated Mr. Greeno's back and neck condition. At that time, he advised Mr.
Greeno that in living with this condition, he would have to be careful in what
The physical therapy evaluations revealed the following findings, as they are
conveyed by Dr. Bhagat:
October 5, 1999:
: flexion decreased by 75%, with associated lower back pain; left and right
rotation decreased by 80% with associated pain; left and right bending decreased
by 50%, with associated pain
: felxion decreased by 25% with associated pain; right and left rotation
decreased by 50% with associated pain on right side; right side bending
decreased by 75% with associated pain on right; extension decreased by 75% with
associated central neck pain; retraction decreased by 50%, with central neck
December 8, 1999
: flexion decreased by 50%, with associated lower back pain; left and right
rotation decreased by 50% without pain; left and right bending decreased by 25%
and 30%, with associated pain in left hip; extension decreased by 50% without
: flexion decreased by 25% without pain; right and left 50% with pain rotation
decreased by 25% without pain; right bending decreased by 75% with associated
pain; left bending decreased by 75% with associated pain; extension decreased by
25% with complaints of dizziness; retraction decreased by 30%, with associated
central neck pain
January 18, 2000
: flexion decreased by 40%, with associated lower back pain; left rotation
decreased by 40% without pain; right rotation decreased by 50% with associated
pain; right bending decreased by 20% with associated pain on right side;
extension decreased by 40% with associated low back pain
: flexion decreased by 10% without pain; right rotation decreased by 25% without
pain; right bending decreased by 75% with associated pain; left rotation
decreased by 30% with associated central neck pain; left bending decreased by
50% with associated pain; extension decreased by 15-20% with complaints of
dizziness; retraction decreased by 25%, with associated central neck pain
April 6, 2000
: all movements decreased by 25% with associated left low back pain
: right bending decreased by 40% with associated pain; left rotation decreased
by 25% with associated pain; left bending decreased by 20% with associated pain;
extension decreased by 15-20% with associated bilateral neck pain
It appears that Mr. Greeno stopped going to physical therapy sessions after May
16, 2000 because he no longer believed that it was helping him.
Prior to the September 1999 accident, Mr. Greeno had complaints involving his
right hand and wrist and swelling and pain in his left leg and ankle (id.
Exhibit D). Although an MRI had been recommended prior to the accident in
connection with his left ankle problem, none was conducted until 2002, several
years after the accident. These revealed an abnormality, possibly a cyst, on the
lumbar spine (Cagino affirmation, Exhibit G) and evidence of a partial tear of
the deltoid ligament on the left ankle (id. Exhibit H).
More recently, Mr. Greeno was examined by Dr. Louis J. Benton, an orthopedic
surgeon, as part of the independent medical examination arranged by defendant
(id. Exhibit C). According to Dr. Benton, claimant stated that the only
injuries he had that were related to the September 1999 accident were to his
right hand and shoulder, his left ankle and his lower back. Dr. Benton observed
no objective findings to support any of these complaints other than a mild
swelling of the left ankle which medical records indicate existed prior to the
1999 accident. During the period immediately following the accident, Mr.
Greeno's work history was unremarkable. He took a total of three days of sick
leave: October 6, 1999; February 9, 2000; and June 2, 2000.
Injuries of Marieta Greeno
: Mrs. Greeno also went to the Alice Hyde Hospital on the day of the accident,
and she was diagnosed as having a "neck sprain" (id. Exhibit J, pp 2-3).
X-rays taken on the day of the accident and an MRI performed in 2000 (id.
Exhibits P, Q) also showed no trauma related abnormalities. When she followed up
with Dr. Bhagat on September 22, 1999, she stated that the pain was still
present but not as bad as on the day of the accident. He diagnosed her as
having "whiplash" (id. Exhibit K; Bhagat affirmation, ¶ 3). In
November and December, she was again seen by Dr. Bhagat, and on those occasions
she complained of neck pain, dizziness, and a burning sensation in her cervical
area. The doctor recommended an MRI, which was performed on April 17, 2000. This
procedure revealed a "bony encroachment on the intervertebral foramen on the
right side at the C5-6 vertebrae" (id. ¶ 7). There is nothing in the
record before the Court to link this to the 1999 accident. Although physical
therapy appeared to help, Mrs. Greeno continued to have complaints of dizziness
and radiating pain. On July 11, 2001, she was told by Dr. Bhagat that her neck
pain may never fully subside.
Physical therapy notes for Mrs. Greeno indicate that she was diagnosed as
having "a minimal decrease in range of motion of her cervical spine in lateral
bending bilaterally" and in left rotation. On May 1, 2000, she received the
following measurements of movement of her cervical spine: left side bending
decreased by 20%; right side bending decreased by 50%; extension decreased by
50%. Approximately two months later, on June 29, 2000, her cervical range of
motion was decreased in side bending by 50% and in extension by 25%.
In May 2003, Mrs. Greeno was examined by Dr. Benton, in an independent medical
examination related to this lawsuit. She stated that the injuries she received
from the accident related to her neck, but again Dr. Benton was unable to find
any objective signs supporting a diagnosis of traumatic injury (id.
Exhibit L). There were some degenerative arthritis injuries noted.
Defendant's submissions in support of this motion have met its initial burden
of presenting evidence that the claimants did not suffer a serious illness. This
shifts the burden to the claimants to produce evidence in admissible form that
will, at a minimum, establish that there is a question of fact as to whether
they have overcome the threshold requirement (Armstrong v Wolfe, 133 AD2d
957 [3d Dept 1987]).
As noted above, one way to establish that a litigant has a serious injury, as
defined by Insurance Law §5102(d), is to prove that they suffered a
"significant limitation of use of a body function or system." To make the
necessary showing, an expert medical witness must establish the existence of the
injuries and causation to a reasonable degree of medical certainty (Dumas v
Valley View House Inc., 235 AD2d 767 [3d Dept 1997]). As noted by claimants'
counsel, documented loss of range of motion can be used to substantiate a
serious injury (Toure v Avis Rent A Car Sys., 98 NY2d 345 ). It
cannot accomplish the task alone, however.
In the Toure decision, the Court of Appeals held that sufficient proof
had been presented to establish a "significant limitation of use of a body
function or system" and overcome defendants' motion for summary judgment where
three types of evidence were presented by the plaintiff: objective evidence of
injury (MRI results showing herniated discs); a qualitative or quantitative
description of subjective symptoms (loss of range of motion); and an expert's
explanation of how the plaintiff's injury and limitation of movement affected
the normal function, purpose and use of the relevant body part and how they
affected the plaintiff's ability to carry out normal, daily tasks (id. at
Just last year, the Third Department reiterated that where there is no
independent objective medical evidence of a related injury "a finding of reduced
range of motion alone is insufficient to support a finding of serious injury
because such a determination is based on subjective complaints of pain"
(Durham v New York East Travel, Inc. (2 AD3d 1113, 1115 [3d Dept 2003]).
In that case, an MRI taken a month after the accident showed a moderate to large
disc herniation in the plaintiff's cervical spine, a herniation that had not
been present in an MRI taken for other purposes two months before the accident.
Two years later, the plaintiff continued to have a range of motion in the
cervical area that was only 50% of normal. Defendant argued that there was no
objective evidence of the continuing limitation of the range of motion, but the
appellate court stated that once a herniated disc has been established by
objective medical evidence, such as an MRI, an expert's designation of the
individual's loss of range of motion, by a numeric percentage, can be used to
substantiate a claim of serious injury. The court made it clear, however, in the
statement quoted above that the result would be different if there was no
corresponding objective evidence of an injury. (See also John v
Engel, 2 AD3d 1027 ; June v Gonet, 298 AD2d 811 [3d Dept 2002];
Mikl v Shufelt, 285 AD2d 949, 950, [3d Dept 2001]). In June
(supra), the serious injury threshold was not met because the MRI results
were for the most part unremarkable; there was no showing that the only
abnormality noted on them was related to her particular symptoms; the expert did
not offer an opinion regarding permanence other than "the mere parroting of the
applicable statutory language;" her physician failed to describe the nature of
her limitations as they are compared to the function, purpose and use of the
affected body part; and the physician provided no detail as to how the
limitations impacted on her work and other daily activities (298 AD2d at
In the instant case, there is no objective medical evidence of a serious
injury. Claimants rely exclusively on their subjective complaints of pain and
the measurements of decreased range of motion which, in turn, are based on those
subjective complaints. In addition, claimants' physician has made no firm
finding of permanence, nor is there any objective evidence indicating
permanency. In fact, the steady improvement of both claimants' range of motion
measurements during the time that they went to physical therapy suggest that
their limitations in movement may well not be permanent. Furthermore, there has
been no effort to connect the result of any injury or limitation of movement to
"the normal function, purpose and use of the affected body organ, member,
function or system" (John v Engel, 2 AD3d 1027, supra).
Claimants, therefore, have failed to establish either that their injuries meet
the "serious injury" threshold or that there is a question of fact as to whether
they may meet that threshold. Defendant's motion is granted, and Claim No.
104514 is dismissed.