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Medici v. Arbisser

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 27, 2010

JOSEPH F. MEDICI, PLAINTIFF-APPELLANT,
v.
JOEL M. ARBISSER, DEFENDANT, AND ROLAND CARCASES AND NEW JERSEY TRANSIT CORP., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, Docket No. L-1007-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 29, 2010

Before Judges Stern and Skillman.

Plaintiff appeals from orders of July 23, 2009 dismissing his personal injury action arising out of an accident allegedly caused by defendant Roland Carcases who was operating a NJ Transit bus that ran into the back of a vehicle driven by defendant Joel Arbisser whose vehicle, in turn, hit plaintiff's car. Plaintiff suffered an "annular bulge with ridging" at C4-5 in his cervical spine, which "causes some proximal right neural foraminal narrowing," other soft tissue sprain and strain to the cervical spine, "a diffusely degenerated articular disk/meniscus which is not clearly displaced," (TMJ) and whiplash. Plaintiff's oral surgeon provided an affidavit that plaintiff's injuries were "permanent" and caused by the accident. He felt the injuries constituted "a permanent loss or limitation of bodily function that is substantial." Plaintiff's Dr. Boris Prakhina confirmed the disc bulge at C4-5 and "cervical disc displacement."

Plaintiff asserts that the disc bulge and TMJ are "significant" permanent injuries which are causing substantial impact on his life. He claims he can no longer swim or engage in strenuous activities. He further claims an inability to eat foods which require him to open his mouth and chew. His ability to sing in his band has also been adversely affected.

We affirm the judgment substantially for the reasons expressed by Judge Alvaro L. Iglesias in his oral opinion of July 23, 2009. Plaintiff must demonstrate "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000). We agree with Judge Iglesias that the injuries did not constitute a "loss of a bodily function" that is "substantial" for purposes of the TCA. See Knowles v. Mantua Twp. Soccer Assn., 176 N.J. 324, 330-33 (2003); Gilhooley, supra.

Affirmed.

20100727

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