Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on July 31, 2019, under motion sequence two, by plaintiff Sainita Marriott (hereinafter Marriott) for an order pursuant to CPLR 3212 granting summary judgment in Marriott’s favor on the issue of liability. Defendants Jahia Saidah Jackson and Michael Jackson (hereinafter the Jacksons) have opposed the motion. Notice of Motion Affirmation of Marriott’s counsel in support Affidavit of Marriott in support Exhibits A-B Affirmation of the Jacksons’ counsel in opposition Exhibits A-I Affirmation of Marriott’s counsel in reply Exhibits A-B Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on October 23, 2019, under motion sequence three, by the Jacksons for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint on the basis that Marriott has not suffered a serious injury as defined in New York Insurance Law 5102 (d). Marriott has opposed the motion. Notice of Motion Affirmation of the Jacksons counsel in support Exhibits A-I Affirmation of Marriott’s counsel in opposition Exhibits A-B Affirmation of the Jacksons counsel in reply Exhibit A DECISION & ORDER BACKGROUND On October 13, 2017, Marriott commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk’s Office. Defendant Michael Jackson joined issue by a verified answer with cross claim filed on March 1, 2018. Defendant Jahia Saidah Jackson joined issue by a verified answer with cross claim filed on March 15, 2018. Defendant Michael Jackson responded to Jahia Saidah Jackson’s cross claim by a verified reply to cross claim filed on April 3, 2018. On October 15, 2019, Marriott filed a note of issue. Marriott’s verified complaint, affidavit and deposition transcript allege the following salient facts. On October 30, 2016, at approximately 5:50 p.m., Marriott was a passenger in a Lexus motor vehicle operated by nonparty Lester Pollanus (hereinafter the Marriott vehicle). Pollanus was on the right lane of travel on Atlantic Avenue proceeding towards its intersection with Eastern Parkway. Upon arriving at the intersection, Pollanus brought the Marriott vehicle to a stop and waited for the red light to change. At the same time, date and place, Jahia Saidah Jackson was operating a 2001 Chevrolet Malibu motor vehicle owned by her father Michael Jackson and bearing license plate number HHZ5790 (hereinafter the Jackson vehicle). Jahia Saidah Jackson was also traveling on the right lane of travel on Atlantic Avenue proceeding toward its intersection with Eastern Parkway directly behind the Marriott vehicle. About five seconds after the Marriott vehicle came to a stop, Jahia Saidah Jackson collided with the rear of the Marriott vehicle (hereinafter the subject accident) seriously injuring Marriott. LAW AND APPLICATION It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]; Poon v. Nisanov, 162 AD3d 804 [2nd Dept 2018]). The moving party’s submissions must show that there is no defense to the cause of action or that the cause of action or defense has no merit (Gobin v. Delgado, 142 AD3d 1134 [2nd Dept 2016]). Plaintiff’s Motion for Summary Judgment on Liability Marriott seeks an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability. The Jacksons have opposed the motion based on Marriott’s failure to annex the pleadings to her motion and based on her alleged failure to demonstrate the lack of material issues of fact as to how the subject accident occurred. Marriott did not annex the pleadings to the motion papers. The Jacksons contend that this fact renders the motion papers fatally defective and precludes the granting of summary judgment in Marriott’s favor. CPLR 3212 (b) requires, inter alia, that a moving party support its motion for summary judgment by attaching a copy of the pleadings. However, CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (Sensible Choice Contracting, LLC v. Rodgers, 164 AD3d 705, 706-07 [2nd Dept 2018], citing Wade v. Knight Transp., Inc., 151 AD3d 1107, 1109 [2nd Dept 2017]). Here, all the pleadings were not only electronically filed and available to the Supreme Court and the parties, but also were contained in either the defendants’ own motion papers or in the plaintiff’s reply papers. Furthermore, the Jacksons did not assert that they were prejudiced by the omission. Under such circumstances, the Court may properly disregard the plaintiff’s omission (Sensible Choice Contracting, LLC at 707, citing Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 742 [2nd Dept 2013]; Studio A Showroom, LLC v. Yoon, 99 AD3d 632 [2012]; Welch v. Hauck, 18 AD3d 1096, 1098 [2nd Dept 2005]). Marriott’s failure to annex the pleadings to the motion papers is disregarded pursuant to CPLR 2001. A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (Modena v. M & S Mech. Services, Inc., 181 AD3d 802 [2nd Dept 2020], citing Tutrani v. County of Suffolk, 10 NY3d 906, 908 [2008]). Here, Marriott established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of, inter alia, her affidavit, her deposition testimony and the deposition testimony of Jahia Saidah Jackson. The aforementioned sworn testimony has demonstrated that the Jackson vehicle struck the rear of the Marriott vehicle while the Marriott vehicle was stopped for a red light (see Batashvili v. Veliz — Palacios, 170 AD3d 791, 792 [2nd Dept 2019]; Lopez v. Dobbins, 164 AD3d 776, 777 [2nd Dept 2016]). In opposition to this prima facie showing, the Jacksons have claimed that the subject accident occurred because the Marriott vehicle had come to a sudden short stop. The claim was unsupported by their opposition papers. In fact, Jahia Saidah Jackson’s deposition testimony corroborated the material facts averred by Marriott of how the subject accident occurred. Jahia Saidah Jackson testified that the Marriott vehicle was stopped at a red light at the intersection of Atlantic Avenue and Eastern Parkway for several seconds before the collision. Consequently, Marriott has made a prima facie showing of entitlement to summary judgment in her favor on the issue liability and the Jacksons have not raised a triable issue of fact. Defendants’ Motion for Summary Judgment Seeking Dismissal The defendant seeks an order pursuant to CPLR 3212 dismissing the verified complaint on the basis that the plaintiff did not suffer a serious injury as defined by New York State’s Insurance Law 5102 (d). As the moving party, defendant initially has the burden to establish that plaintiff did not sustain a “serious injury” within the meaning of the statute (see Nolasco-Ochoa v. Kollanethu, 181 AD3d 689 [2nd Dept 2020] citing Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]; see e.g. Gaddy v. Eyler, 79 NY2d 955, 956-957[1992]). Insurance Law §5102 (d) defines serious injury as: A personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. “A defendant can establish that the plaintiff’s injuries are not serious within the meaning of Insurance Law 5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claim” (Nunez v. Teel, 162 AD3d 1058, 1059 [2nd Dept 2018], quoting Grossman v. Wright, 268AD2d 79, 83 [2nd Dept 2000]). “With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant’s submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law” (Grossman, 268 AD2d at 84). “The plaintiff in such a situation must present objective evidence of the injury” (id.). Marriott claimed in her verified bill of particular injuries under the permanent consequential limitation of use, significant limitation of use and 90/180 categories of Insurance Law 5102 (d). In particular, she alleges that the subject accident caused her to go into premature labor resulting in a cesarean surgery and to sustain multiple disc herniations of her cervical spine and radiculopathy. In support of their motion, the Jacksons submitted what they described as Marriott’s hospital admission records from New York Methodist Hospital. These records are neither affirmed nor certified and the Jacksons have offered no foundation for their admissibility. A defendant may rely on unsworn medical records provided by the plaintiff to the defendant in support of a motion for summary judgment (Kearse v. New York City Tr. Auth., 16 AD3d 45 [2nd Dept 2005]). The affirmation of the Jacksons’ counsel, however, does not set forth how the records were obtained or the basis for counsel’s knowledge that the New York Methodist Hospital room records are what counsel purports them to be. The records are, therefore, disregarded. Moreover, the Jacksons did not provide sworn testimony from a health care professional explaining the contents of these records. The Jacksons also submitted the affirmed IME report of Dr. Alan J. Zimmerman, an orthopedist hired to conduct an independent medical examination of Marriott. On May 7, 2019, Dr. Zimmerman examined Marriott’s muscle reflexes and conducted range of motion testing of her cervical spine. He set forth his findings and compared those findings to what is normal and concluded in his affirmed report that plaintiff had full unrestricted range of motion, normal muscle reflexes and no disability. Dr. Zimmerman examined Marriott over two years after the subject accident and offered no opinion regarding her physical condition during the first six months after the accident. Dr. Zimmerman also failed to address Marriott’s claim that the subject accident caused her to go into premature labor and undergo a cesarean surgery. In light of the foregoing, the Jacksons’ motion papers failed to adequately address Marriott’s claim, set forth in the bill of particulars, that she sustained a medically determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Tekhnyeyev v. Joseph, 133 AD3d 592 [2nd Dept 2015], citing Che Hong Kim v. Kossoff, 90 AD3d 969 [2nd Dept 2011]). The papers also failed to address the claim of traumatically induced premature labor and resulting cesarean surgery (see Rosales v. Rivera, 176 AD3d 753, 754 [2nd Dept 2019]. Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by Marriott in opposition were sufficient to raise a triable issue of fact (Mobley v. J. Foster Phillips Funeral Home, Inc., 178 AD3d 916, 917 [2nd Dept 2019], citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). CONCLUSION Plaintiff Sainita Marriott’s motion for an order pursuant to CPLR 3212 granting summary judgment in her favor on the issue of liability against defendants Jahia Saidah Jackson and Michael Jackson is granted. Defendants Jahia Saidah Jackson and Michael Jackson’s motion for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint on the basis that Marriott has not suffered a serious injury as defined in New York Insurance Law 5102 (d) is denied. The foregoing constitutes the decision and order of this Court. Dated: April 29, 2020
