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NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 06/03/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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JOHARI COMMODORE,
Index No.: 705033/16E
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO
DEFENDANT'S MOTION
MTA BUS COMPANY, NEW YORK CITY DATED MARCH 22, 2019
TRANSIT AUTHORITY, METROPOLITAN
TRANSPORTATION AUTHORITY, MOHAMED
BAH AND ZELJKO SPALETO CITY TRANSIT
Defendants.
__________________________________________..---------------------X
KARLESHA V. HEWITT, an attorney duly admitted to practice law before the Courts
of the State of New York, hereby affirms the following, upon information and belief, under the
penalty of perjury:
1. I am an associate with the firm BURNS & HARRIS, ESQS. attorneys for the
plaintiff, JOHARI COMMODORE (herein "plaintiff"), and as such, am fully
fam¾r with the
facts and circumstances as stated herein based upon my review of the file.
2. This affirmation is submitted in opposition to Defendant MTA BUS COMPANY,
NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION
AUTHORITY, AND MOHAMED BAH'S motion for sr.-ññary judgment pursuant to CPLR §
injuries"
3212 on the issue of whether plaintiff suffered "serious within the meaning of Insurance
Law §5102(d) as well as Defendant ZELJKO SPALETO CITY TRANSIT'S affirmation in
support. (MTA BUS COMPANY, NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSPORTATION AUTHORITY, MOHAMED BAH AND ZELJKO
SPALETO CITY TRANSIT hereinafter referred to as "Defendants").
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3. This action arises out of a bus accident that occurred on May 19, 2015. At the time
of the accideñt, Plaintiff was a passenger aboard the Q101 bus at Astoria Blvd. The bus swerved
and T-boned another vehicle.
PROCEDURAL HISTORY
4. In the interest of brevity and judicial economy, plaintiff adopts the procedural
account in movant's papers. Likewise, PlaintifE herein, incorporates the exhibits annexed to
movant's papers for reference.
COUNTER STATEMENT OF FACTS
5. Ms. Commodore was involved in an accident on July 23, 2014, and she testified
pain"
that she only sustained "a little to her lower back, neck, and knee as a result of that accident.
(movant's Exhibit I, pp.26-27, 32). Ms. Commodore testified that the knee pain she endured
days."
the 2014 lasted a "couple of (movant's Exhibit I, p.34). She was not treated
following only
for any of these minor pains. (movant's Exhibit I,pp.30-31, 34). In fact, Ms. Commodore saw Dr.
Fay after the 2014 incident and his medical records do not state Ms. Commodore complained of
neck, knee, or back pain or injury. See movants Exhibit S. This is because Ms. Cermedere was
not in pain a week after the 2014 accident. (movant's Exhibit I, pp.29, 31).
6. Ms. Commodore was deposed on April 12, 2018. See movants Exhibit I. On May
19, 2015, at approximately eight thirty to nine o'clock in the morning, the Q101 bus she was aboard
was involved in a motor vehicle at Astoria Boulevard, at South and Steiñway Street, in Queens,
New York. (movant's Exhibit I, pp. 42, 64, 67 ; see also, annexed hereto as Exhibit A, the police
report from the date of the subject accident). Ms. Com-modore was seated on the bus, when the
driver began to violently swerve back and forth, before there was an impact with a red Ford motor
vehicle. (movant's Exhibit I, p.64; Exhibit A).
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7. The impact from the May 19, 2015 accident caused Ms.
thrown against a pole. (movant's Exhibit I, p.67). As a result, EMS
Commodore off Defendant's bus following the incident. (movant's
Commodore went to Mount Sinai Hospital that same day to seek medical
back and knee injuries she sustained as a result of this accident. (movant's
hospital administered pain medication and noted Ms. Commodore was
(myalgias), discomfort and pain in her joints, and tenderness following the
(annexed hereto as Exhibit B, Certified Mount Sinai Hospital records; s
I, p.86).
8. One week after the April 12, 2018 accident, as a result
thereon, Ms. Commodore sought further medical attention with her primary
because she was still
feeling
pain back, getting migraines, and her knees
Exhibit I, pp. 88-89).
9. Due to the pain and injuries sustained on May 19, 201
back, neck, and knees, Ms. Commodore was referred to physical the
Stephen Huish. (movant's Exhibit I, pp.95-96, 99). Please find annexed
copy of the certified medical records from Physical Medical Rehabilitation.
therapy regularly. Id. Ms. Commodore underwent MRIs and learned she
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10. Ms. Commodore explained that after the May 19, 2015 accident, the injuries in
her neck, knee, and back cause her to feel pain very often, and that it is difficult for her to walk
due to a popping semation. (movant's Exhibit I, pp. 120-121). She has migraines.
ongoing
(movant's Exhibit I, p.126). Ms. Commodore explaimed she has experienced limitations that have
had a substantial impact on her lifestyle, she is no longer capable of dancing, and roller skating,
her sex drive has decreased, she isn't as social, and she has difficulty with daily activities like
bending down to tieher shoes. (movant's Exhibit I, pp.124-125). Ms. Co==:d:-e testified that
she did not experience any of these difficulties following the 2014 accident. (movant's Exhibit
I, p.125).
11. After the May 19, 2015 accident, Ms. Commodore testified that she was still in
significant pain several years later and described the pain in her right knee, and back suctained by
the subject accident as being a ten out of ten. (movants Exhibit I, pp. 121-123).
DEFENDANTS'
MOVING PAPERS ARE INSUFFICIENT AS A MATTER OF LAW TO
INJURY"
ESTABLISH THAT PLAINTIFF DID NOT SUSTAIN A "SERIOUS IN THE
SUBJECT ACCIDENT
12. A party is entitled to an order granting it s=sñary judgmcñt in the absence of any
triable issues of fact. See Rotuba v. Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 385 N.E.2d 1068,
413 N.Y.S.2d 141 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 320 N.E.2d 853, 362 N.Y.S.2d 131
(1974). The party moving for summary judgment must make a prima facie showing of entitlemeñt
to judgment as a matter of law, by tendering sufficient proof to demnmtrate the abseñce of any
material issues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 601 N.E.2d 572, 508
N.Y.S.2d 923, 925 (1986). Thereafter, the burden shifts to the party opposing the motion to
product evidence sufficient to establisli the existence of a material issue of fact for trial. See Ld. If
a fails to make a prima facie the motion should be danied
party showing, notwithstanding any
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insufficiency in the opposition papers. See Hilaire v Trotta, 140 A.D.3d 930 (2d Dept 2016). Here,
Defendants failed to establish their prima facie case.
Defendants'
13. With respect to a threshold motion, it iswell-settled that it is burden
injury."
to establish with competent medical evidence that Plaintiff failed to sustain a "serious See
Sook Houng v. Beers, 151 A.D.3d 995, 54 N.Y.S.3d 449 (2d. Dep't 2017); citing to Toure v. Avis
Rent-A-Car Sys., 98 N.Y.2d 345, 774 N.E.2d 1197, 746 N.Y.S.2d 865 (2002). Only ifDefendants
satisfy this standard, does the burden shift to Plaintiff to rebut Defendant's prima facie showing,
by produciñg admissible evidence sufficient to require a trial of material factual issues as to
injury"
whether Plaintiff sustaiñed a "serious from the accideñt in question. See Franchini v.
Palmieri, 1 N.Y.3d 536, 807 N.E.2d 282, 775 N.Y.S.2d 232 (2003). If Defendants failto meet
their burden, the Court should deny summary judgment regardless of any insufficiency in
Plaintiff's opposition. See Hilaire v. Trotter, 140 A.D.3d 930, 32 N.Y.S.3d 509 (2d. Dep't 2016).
Plaintiff can demomtmte that she sustained a serious injury with objective proof that she sustaiñêd
a permanent consequential limitation of use of a part or significant limitation and/or that she
body
was medically prevented from performing her usual and customary activities for 90/180 days
following the accident. See Toure v. Avis Rent-A-Car Sys., 98 N.Y.2d 345, 774 N.E.2d 1197, 746
N.Y.S.2d 865 (2002).
14. The proponent of a summa-y judgment motion must make a prima facie showing
of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any
material issues of fact from the case. See Alvarez v. Prospect Hospital, 68 N.Y.S.2d 320, 324
(1986); Zuckerman v. City of New York. 49 N.Y.2d 557, 562 (1980). Failure to make such a
showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See
Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985). Where the Defendant's
papers set forth information from which it can be found that the plaintiff anc+ainad a "serious
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injury", summary judgmeñt will be denied. See Espinal v. Trapano, 2002 WL 31015559 (N.Y.
Sup. App. Term) 2002 N.Y. Slip Op. 50347(U) (1st Dept. 2002).
'serious'
15. As a result of Plaintiff's injuries sustained in the subject accident, Plaintiff
underwent EMG testing with Physiciañs Medical Rehabilitation Associates LLC, and MRI testing
at Stand-Up MRI of the Bronx, P.C. for her lumbar, cervical spine, and right knee.
16. With respect to Ms. Commodore's lumbar spine, an MRI was taken on November
30, 2015 wherein the treating radiologist determined Ms. Commodore sustained the following
injuries: herniation at L5/S1, and disc bulging at L 1/2, 2/3, 3/4, 4/5. Please find ann-ed hereto
as Exhibit D a copy of the certified MRI reports of Ms. Comm---fore's lumbar spine, dated
November 30, 2015 ; See also movant's Exhibit N.
17. With respect to Ms. Commodore's cervical spine, an MRI was taken on
November 30, 2015, wherein the treating radiologist determined Ms. Commodore sustained the
following injuries: herniations at C4/5, C5/6, C6/7, disc bulging at C2/3, C3/4, C7/T1. Please find
annexed hereto as Exhibit D a copy of the certified MRI reports of Ms. Commodore's cervical
spine, dated November 30, 2015; See also movant's Exhibit N.
18. With respect to Ms. Commodore's right knee, an MRI was taken on December
22, 2015, wherein the treating radiologist determined Ms. Commodore sustained the following
injuries: tears of posterior horns of medial and lateral menisci- Please find annexed hereto as
Exhibit D a copy of the certified MRI reports of Ms. Commodore's right knee, dated December
22, 2015; See also movant's Exhibit N.
19. Ms. Commodore's underwent a bilateral lower EMG/NCV test on March 29,
2016. This test documented a leftL5 radiculopathy. A copy of the EMG/NCV report is annexed
hereto as a part of Exhibit C. She also underwent a bilateral upper EMG/NVC test on December
15, 2015. This test documents a right C4 through C6 radiculopathy. SeeExhibit C.
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20. Defendants hired Dr. Jay Eneman to conduct an orthopedic examirgition of Ms.
Commodore. Ms. Commodore presented on May 17, 2018 for said ex=im±ion (movant's Exhibit
V). Fatal to Defendant's application is the fact that Dr. Eneman wholly fails to comment on
(movants'
the presence of the objective, positive MRI and EMG findings. Exhibit V). The
failure to commentonthe presence'of the objective, positive MRI hdi=gs coupled with Dr.
clinical defendants'
Eneman's positive, examination results in failure to meet the prima facie
burden. Shumway v. Bungeroth, 58 A.D.3d 431 (1st Dept., 2009). Furthermore, Dr. Eneman
notes, but wholly fails to comment on the positive, clinical findings of the physicians who
(movants'
treated Ms. Commodore contemporaneous and subsequent to the accident.
Exhibit V). Moreover, Dr. Eneman's clinical examination revealed objective, clinical evidence of
"serious"
a injury. Specifically, Dr. Eneman performed range of motion testing with respect Ms.
Commodore's cervical, thoracic, and lumbar spine as well as her left and right knee. The range of
following· 45/60°
motion test of Ms. Commodore's cervical spine revealed the awancion (25%
70/80° 70/80°
loss of range of motion); right rotation (12% loss of range of motion); left rotation
35/45°
(12% loss of range of motion); right lateral flexion (22% loss of range of motion) and
35/45°
left lateral flexion (22% loss of range of motion). The range of motion test of Ms.
40/45°
Commodore's thoracic spine revealed the following: flexion (11% loss of range of
35/45°
motion); right lateral bending (22% loss of range of motion) and left lateral bending
35/45°
(22% loss of range of motion). The range of motion test of Ms. Commodore's lumbar
60/60° 25/25°
spine revealed the following: flexion (0% loss of range of motion); extension (0%
25/25°
loss of range of motion); right lateral bending (0% loss of range of motion); and left
25/25°
lateral bending (0% loss of range of =:±n). The range of motion test of Ms.
120/150°
Commodore's right knee revealed the following: flexion (20% loss of range of motion).
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125/150°
The range of motion test of Ms. Commodore's leftknee revealed the followiñg. flexion
(16% loss of range of motion).
21. To establish a permanent conseq=ütiãl limitation of the use of a body organ or
member, a plaintiff must demonstrate, through competent medical evidence, that her injury was
both permaneñt and consequential. See Kordana v. Pomellito, 121 A.D.2d 783, 503 N.Y.S.2d 198
'consequeñtial'
(3d. Dep't 1986). In the context of the N.Y. Insurance Law, the term means
'important' '"
or 'significant If Thus, a plaintiff must demonstrate more than . .. a
"'something
use."'
minor, mild or slight limitation of See Licari v. Elliot, 57 N.Y.2d 230, 441 N.E.2d 1088,
455 N.Y.S.2d 570 (1982).
22. To prove the extent or degree of physical limitation with respect to the "permanent
member"
consequential limitation of use of a body organ or or "significant limitation of use of a
system"
body fimction or categories, either a specific percentage of the loss of range of =otio=
nature"
must be ascribed or there must be a sufficient description of the "qualitative of plaintiffs
limitations, with an objective basis, correlating plaintiffs limitations to the normal function,
purpose and use of the body part. See T re v Avis Rent A Car Systems, Inc., 98 N.Y.2d 345,
774 N.E.2d 1197, 746 N.Y.S.2d 865 (2000) (emphasis added). A minor, mild or slight limitation
of use is considered insignificant within the meaning of the statute. See Licari v Elliott, supra. A
goniometer has been considered to be an objective measurement with respect to loss of range
of motion in the threshold context. See Martin v. Portexit Corp., 98 A.D.3d 63, 948 N.Y.S.2d
(1st
21 Dep't 2012) (emphasis added); see also Desulme v. Stanva, 12 A.D.3d 557, 785 N.Y.S.2d
477 (2d. Dep't 2004).
23. The above limitations and restrictions in Ms. Commodore's range of motion,
defendants'
found by own doctor, more than two years after the accident, confirm that Ms.
injury,"
Commodore sustained a "serious as a result of the subject accident, satisfying the
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permanent consequential limitation of use a body organ or member and/or a significant limitation
of a body function or system. Little v Ajah, 97 A.D.3d 801 (2d Dept 2012). Despite the finding of
decreased range of motion, Dr. Eñêmâñ conchmory states Ms. Commodore's cervical, thoracic,
and lumbar bulging and herniations, and right knee tear are resolved. He fails to address why he
"sprain/strains"
believes Ms. Commodore's cervical and lumbar injuries are or why he believes
"sprain/contusion"
her right knee injury is a despite objective, positive findings that Ms.
Com-modore's lumbar and cervical injuries are herniations, bulges and her right knee injury is a
tear. Dr. Eneman's assertions are disingenuous and contadictorf to his own objective fiñdiñgs on
clinical examination. Concemitstly, Dr. Eneman's opinion is not predicated upon any objective,
medical evidence and in fact is antithetical to the same.
24. The above noted objective, positive MRI and EMG findings are indicative of
"serious injury", yet Dr. Eneman wholly fails to comment on the same. As such, the basis for the
opinions of Dr. Eneman is bare, incomplete, without probative value, conclusory, and cannot
defendants'
satisfy prima facie burden. Shumway, 58 A.D.3d 431 (1st Dept., 2009) ("Defeñdants
failed to meet their initial burden of establishing that plaintiff had not sustained a serious injury,
Defendants'
within the meañiñg of Insurance Law § 5102(d)). medical expert, who did not address
any of plaintiff's medical records, including reports of examinations in May and July 2003
revealing dimlelshed range of motion, in specified degrees, in the cervical, thoracic, lumbar, and
sacral hip areas, as well as a June 2003 MRI report indicating disc bulges and herniation."); see
also, Wadford v. Gruz, 35 A.D.3d 258 (1st Dept., 2006)("Although [defense expert] reportedly
found no evideñce of any neck or back injury, [he] failed to address plaintiff's objective tests that
were indicative of a serious injury. MRI reports documented herniations of the spine, some of
which were encroaching on the neural foramina, and EMG test results documented neurological
sequelae resulting therefrom.").
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25. The failure to address objective, positive MRI and EMG htigs is fatal to
defendants'
instant application as defendants have failed to meet the prima facia burden to
be entitled to summary judgment. Id. Moreover, defendants have failed to show that Ms.
Cens:±re's objective, positive MRI findings are not causally related to the subject
accident. Thus, defendants have failed to establish, prima facie, entitlement to summary
judgment.
THE OBJECTIVE MEDICAL EVIDENCE SUBMITTED HEREIN RAISES A TRIABLE
INJURY"
ISSUE OF FACT AS TO WHETHER PLAINTIFF SUSTAINED A "SERIOUS
IN THE MOTOR VEHICLE ACCIDENT AT ISSUE
26. The Courts have held that Å“aazy judgment is a drastic remedy that should not
be invoked where there is any doubt as to a triable issue of fact. Mosheyev v. Pilevsky, 283 A.D.2d
469 (2d Dept 2001); See Andre v. Pomerov, 35 NY2d 361 (1974]).
27. CPLR 3212(b) provides that a motion for m==y judgment "shall be denied if
fact."
any party shall show facts sufficient to require a trial of any issue of Because :;=ary
judgment is a drastic remedy which deprives the litigant of his day in court, it should only be
granted where no real fact question is presented. Castlepoint Ins. Co. v Command Sec. Corp., 144
AD3d 731 (2d Dept 2016); Kolivas v. Kirchoff, 14 A.D.3d 493 (2d Dept 2005); Chatham v. Board
Of Fire Comm'rs, 90 A.D.2d 860,861 (3rd Dept. 1982); Rexford Plumbing. Heatino & Hardware
Co., Inc. v. City of Johnstown, 89 A.D.2d 1035 (3d Dept. 1982); Atkisson v. Manitoba Corp., 192
AD2d 1077 (4th Dept. 1993); FIeath v. Soloff Constr.. Inc., 107 A.D.2d 507,511 (4th Dept. 1985).
28. In negligence and personal injury cases, ithas been held that Tr-razy judgment
is rarely granted. Ugarriza v. Schmieder, 46 NY2d 471, 475(1979); Barlow v. Hertz Coro.. 160
AD2d 580 (1st Dept. 1990).
29. The courts have theorized that such cases, by their very nature, do not usually lend
themselves to summary disposition, (Johar.ñsdo*tir v Kohn, 90 AD2d 842 (2d Dept 1982), because
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issues such as negligence, foreseeability, proximate cause and superseding cause involve the kind
to"
of "judgmental variables which have traditianany, and soundly been left a jury "even where
undisputed."
the facts were essentially Raider v. Friedman, 162 AD2d 112, 112 (1st Dept. 1990).
30. The function of a court in deciding a summary judgment motion is to determine
whether any issues of fact exist which preclude susy judgment resolution of the dispute
between the parties on the merits. Columbus Trust Co. v. Campolo, 110 AD2d 616 (2nd Dept.),
aff'd for reasons stated in opinion at A.D. 66 NY2d 701 (1985); Weiner v. Ga-Ro Die Cutting,
Inc 104 AD2d 331, 333 (1st Dept. 1984), aff'd, 65 NY2d 732 (1985). Stated otherwise, the
function of a court upon a summary judgment motion is issue finding, not issue determination.
Rowan v. Brady, 98 AD2d 638 (1st Dept. 1983).
31. In accordance with the foregoing rules, it is well established that a court, in
deciding a motion for summary judgment, should not make a determination as to the relative
parties'
strengths of the claims. Cross v. Cross, 112 AD2d 62, 64 (1st Dept. 1985);
32. To obtain ---ry judgment, it isnecessary that the movant establish his cause
of action or defense sufficient to warrant the court as a matter of law in directing judgment in his
favor pursuant to CPLR 3212, subd[b] and he must do so by tender of evidentiary proof in
admissible form. Zuckerman v. New York, 49 NY2d 557, 562 (1980). On such a motion, the
court should draw all reasonable inferences in favor of the non-moving party. Rennie v. Barbarosa
Transport, Ltd., 151 AD2d 379, 380 (1st Dept. 1989).
33. In the event this Court determines that defendant met his burden of proof and that
the burden therefore shifted to plaintiff, there exists a material question of fact based on Dr.
Eneman's report. (movant's Exhibit V). Dr. Eñcmañ ~amined Ms. Commodore's cervical spine
and opined the following: no spasms; no paraspinal tenderness in response to Dr. Eneman using1
his hand to check Ms. Commodore's cervical spine; normal muscle strength throughout the upper
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extremities and Spurling's test negative. (movant's Exhibit V). Dr. Eñu11-1 examined Ms.
Commodore's thoracic spine and opined the following: no spasms found; not tender to light touch.
Dr. Eneman examiñêd Ms. Commodore's himhar spine and opined the following: no spasms; no
tenderness to light touch; normal lower extremities muscle strength, and negative seated straight
leg raises (a test where Dr. Eñêmañ would have lifted Ms. Commodore's leg by her posterior ankle
while keeping her knee in a fully extended position, continuing to lifther leg by flexing it atthe
hip until she complained of pain or tightness in the back of the leg). (movant's Exhibit V). Dr.
Eneman examined Ms. Commodore's right knee and opined the followiñg. noted tenderness with
light touch to the front of the knee; McMurray's test negative (a rotation test meant to deme=trate
tears of the knee); Lachmañs test negative ( a test of the rotational stability of the knee/test for
ACL injury); anterior and posterior draw sign negative (a test to determine ruptured ligameñts in
the knee); patella-femoral crepitus not present ( a test to determine whether Ms. Commodore had
an ache behind the knee caused by a meniscus tear); valgus and varus stress test was stable (a test
for damage to the knee). (movant's Exhibit V). Dr. Eneman examined Ms. Commodore's leftknee
and opined the following: no tenderness with light touch to the front of the knee; McMurray's test
negative; Lachmans test negative; anterior and posterior draw sign negative; patella-femoral
crepitus not present; valgus and varus stress testwas stable. (movant's Exhibit V).
34. If the Court determines that there is not a question of fact despite the conflicting
evidence submitted with respect to Dr. Eña11-1's opinion, itis respectfully submitted that the
annexed medical medical report of paintifPs expert Dr. Hal refute
records, neurologist, Gustein,
the findings of Dr. Freman so as to constitute a material question of fact as to whether Mrs.
injury"
Commodore's "serious was causally related to the accident at issue
35. On April 26, 2019, Ms. Commodore presented to Dr. Gutstein for an objective
Neurologic Medical Examiñstion. Please find Dr. Gutstein's medical report annexed hereto as
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ExhibitE. Dr. Gutstcin authored a comprehensive neurological report, affirmed under penalties
of perjury, which clearly sets forth injuries of the nature and effect as required to meet the "serious
injury"
threshold. Dr. Gutstein indicated that Ms. Commodore su