SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORK NASSAU COUNTY - PART 17

Present: HON. WILLIAM R. LAMARCA Justice

DIMITRIOS ZERVOUDIS and ANGELA ZERVOUDIS,

Plaintiff, -against-

TRANSIT CARAVAN, INC. and JOHN DOE"

INDEX NO: 4124/06 Action #1

Defendants.

Plaintiff Motion Sequence #003, #004 Submitted August 27 2008 INDEX NO: 16493/07 Action #2

STELLA ZERVIOUDIS,

-against- DIMITRIOS ZERVOUDIS, TRANSIT CARAVAN, INC. and "JOHN DOE 1" , the operator of motor vehicle owned by TRANSIT CARAVAN, INC.

Defendants

The following papers were read on these motions:

TRANSIT CARAVAN Notice of Cross-Motion (Action #2, Sequence #3)..............................................................

DIMITRIOS ZERVOUDIS (Action #1) Affi rmation in Opposition (N/A).................... ...... .......................

DIMITRIOS ZERVOUDIS (Action #2, Sequence #4) Notice of Cross-Motion (N/A).......................... ....

..... ................ .....

TRANSIT CARAVAN Reply to DIMITRIOS ZERVOUDIS (N/A)............ STELLA ZERVOUDIS (Action #2) Affrmation and

Affi davit in 0 p position................................................................... TRANSIT CARAVAN Reply to STELLA ZERVOUDIS.......................

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The Court notes that, after some initial confusion , it appears that Action #1 has been

completely settled and that Action # 2 has been settled with respect to defendant

DIMITRIOS ZERVOUDIS. Accordingly, Motion Sequence #1 in the consolidated actions

has been withdrawn, and many of the papers submitted on the instant motions are no

longer applicable , as marked above. The only remaining issue concerns TRANSIT

CARAVAN' s threshold motion with respect to plaintiff, STELLA ZERVOU DIS , in Action #2.

Relief Reauested

Defendant, TRANSIT CARAVAN, INC. (hereinafter referred to as " TRANSIT

CARAVAN"

),

moves for an order , pursuant to CPLR 3212 , seeking summary judgment

dismissing the plaintiff's complaint on the basis that she has not sustained a serious injury

within the ambit of Insurance Law 51 02(d). Plaintiff opposes the motion (Sequence #003).

which is determined as follows:

Background

The cause of action results from an automobile accident which occurred , on October

2004 at approximately 10:00 A.M. , at or near the intersection of Community Drive and

Northern Boulevard , Manhasset, New York. The plaintiff, STELLA ZERVOUDIS, age 27

at the time , was a front seat passenger in the vehicle driven by her father, DIMITRIOS

ZERVOUDIS, and alleged that the vehicle in which she was riding was struck by a yellow

school bus operated by an employee of the defendant , TRANSIT CARAVAN. The plaintiff

alleged that , as a consequence thereof, she has sustained "serious injuries" as defined in

Article 51 of the New York State Insurance Law.

In her bill of particulars, the plaintiff alleged that the following injuries were

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proximately caused by the subject accident: left foraminal herniation at L4-L5, broad based

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disc bulge at L5- , focal disc bulges at C5-C6 and C6- , straightening of the cervical

lordosis , lumbar radiculopathy, cervical radicuilopathy, neck pain , numbness and tingling

in both hands and numbness and tingling in both feet.

In support of the instant application , the defendant argues that none of the injuries

the plaintiffs alleged to have sustained are permanent in nature and are mild , minor or

slight limitations , all of which are insufficient to s pport a claim of "serious injury . The

defendant further argues that plaintiff's deposition testimony reflects that she did not

sustain a "serious injury . Notwithstanding her testimony that, upon impact , the plaintiffs

back struck the chair in the car, her knee hit the dashboard and was slightly bleeding and

bruised and her neck hit the back of the seat , the record reveals that plaintiff did not lose

consciousness , that no ambulance or hospitalization was required , that she made no

complaint of pain and was not listed on the police accident report as an injured party.

Moreover, after the accident, plaintiff went straight to work at Macys for five (5) hours and

at most , missed "a couple" of days from work. Further, plaintiff claimed that she reduced

her work hours for a three (3) week period but then returned to her normal schedule but

no proof is provided as to a change in her duties. It appears that plaintiff left her job at

Macys in 2006 and went to work at Nordstroms until September 2006 , when she voluntarily

quit to look for a new position. Although plaintiff acknowledged that she was stil

unemployed at the time of the deposition , on May 31 , 2007 , she stated that her lack of

employment had nothing to do with the alleged injuries sustained in the accident.

Although there is some confusion with the dates in that counsel for plaintiff states

that she was "suffering from pain and severe discomfort until July 2 , 2003 at which time

she began receiving treatment, including physical therapy from Dr. Andrew S. Marcus. .

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. "

, a time frame that is before the subject accident , it appears that plaintiff claimed that , a

few days after the accident , she was treated by Dr. Andrew Marcus , a chiropractor, where

she received physical therapy, four (4) to five (5) times a week for a period of three (3)

months, and then two (2) to three (3) times a week for a period of five (5) months , for a

total of eight (8) months. Contrary to counsel for plaintiff' s representation , no medical

records (or affirmation) from Dr. Marcus are provided to the Court. Plaintiff stated that she

was referred to James Liguori M. , a neurologist, who treated her one (1) time every two

(2) weeks for a period of eight (8) months , for complaints of pain in both fingers and hands

and that she received nerve testing, MRI's for her back and therapy at Island

Muscoskeletal for her right knee. Counsel for defendant points out that there is no

objective evidence for this claim and , moreover, all treatment to plaintiff ended in 2006

without any surgery.

Plaintiff contended that she stil has pain in her neck, back and knee, which limits

her ability to go to the gym and to participate in sports. Counsel for defendant points out

that plaintiffs bill of particulars makes no reference to pain in her right knee or any injury

to the knee.

Defendant' s Medical Submissions

As evidentiary support for the within application , the defendant provides two (2)

affirmed independent med ical reports of Edward T oriello , M. , a board certified orthoped ic

surgeon , and Michael J. Carciente , M. D. a board certified neurologist. (Exhibits "Q" and

, respectively.

Dr. Toriello conducted an examination of the plaintiff and a review of her medical

records, on June 26, 2007 , and noted that plaintiff continues to complain of low back pain

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radiating into her parascapular region. Dr. Toriello examined plaintiff's cervical and lumbar

spine , her right and left shoulder, elbow, wrists and hands , as well as her right and left

knees , and found no motor or sensory deficits , no muscle atrophy or instability, no

sweliling, sensistivity or tenderness, and no loss in plaintiff's range of motion when

compared to normal ranges of motion. He found the Tinel' , Phalen s and Finkelstein

tests to be within normal limits , straight leg raising test to be bilaterally full and pain free

and the McMurray s and Lachman tests to be within normal limits. Dr. Toriello stated that

plaintiff reveals evidence ofa resolved cervical hyperextension injury, resolved low back

strain and resolved right knee 'contusion. He concluded that no further orthopedic

treatment was indicated.

Dr. Carciente conducted an examination ofthe plaintiff and a review of her medical

records , on July 10 , 2007 , and noted that plaintiff continues to complain that she feels

worse since her alleged injury and that she stil experiences pain in the neck, lower back

and numbness in all ten fingertips , pain in her knee and headaches. Dr. Carciente

administered a full neurological exam to plaintiff and found her mental status to be alert

her cranial nerves to be normal , and her motor, reflexes and muscle responses to be

normal. Despite complaints of diminished sensation to cold temperature. Dr. Carciente

found no objective evidence of 'sensory deficits and Tinel's and Phalen s signs were

negative. Plaintiff's gait was normal and her cervical and thoracic/lumbosacral spine

showed no evidence of spasm or tenderness. Dr. Carciente concluded that , despite some

subjective complaints , plaintiff has a normal neurologic examination. He found no

correlation between the finding of disc bulges and herniations as mentioned in the

radiologic repo