The following numbered papers were read on this motion: NYSCEF Doc No. 82: Notice of Motion, submitted by Defendants NYSCEF Doc No. 83: Affirmation of Michael Lachman in Support of Motion (“Michael Lachman Affirmation”), submitted by Defendants NYSCEF Doc No. 84: Statement of Facts, submitted by Defendants NYSCEF Doc No. 85: Exhibit A — Summons and Complaint, submitted by Defendants NYSCEF Doc No. 86: Exhibit B — Answer, submitted by Defendants NYSCEF Doc No. 87: Exhibit C — Bill of Particulars, submitted by Defendants NYSCEF Doc No. 88: Exhibit D — IME Report of Dr. Jeffrey N. Guttman (“Dr. Jeffrey N. Guttman IME report”), submitted by Defendants NYSCEF Doc No. 89: Exhibit E — MRI Review of Dr. Jessica F. Berkowitz (“Dr. Jessica F. Berkowitz MRI review”), submitted by Defendants NYSCEF Doc No. 90: Exhibit F — Plaintiff’s Deposition EBT Transcript (“deposition”), submitted by Defendants DECISION AND ORDER Introduction Plaintiff Gerald Wilks asserts in this action that he sustained personal injuries while occupying and operating his vehicle on October 4, 2018 as a result of negligent operation of another vehicle, operated by Defendant Sam Amadou Babayel and owned by Defendant Baichains, Inc. Said Defendants now move for summary judgment, claiming that Plaintiff failed to meet the “serious injury” threshold of Insurance Law §5104 (a), as defined in §5102 (d). There are nine categories of serious injury, per Insurance Law §5102 (d). Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]). The issue of whether a claimed injury falls within the statutory definition of “serious injury” is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari v. Elliott, 57 NY2d 230 [1982]). The moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not suffered a serious injury proximately resulting from the subject motor vehicle accident (see Toure v. Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; Gaddy v. Eyler, 79 NY2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [2016]). If Defendants have made such a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., that Plaintiff does not qualify under the relevant serious injury threshold categories as there are no material issues of fact, the burden shifts to Plaintiff to submit evidence in admissible form to establish that there are material issues of fact (see Franchini v. Palmieri, 1 NY3d 536 [2003]; Grasso v. Angerami, 79 NY2d 813 [1991]). Bill of Particulars In his bill of particulars, Plaintiff, who was about 59 years old when the accident occurred, alleged that he sustained injuries in the accident to the right knee. He asserted that he was confined to bed for one week and confined to home for approximately four months following the accident, leaving him totally incapacitated from work since the accident (see NYSCEF Doc No. 87, bill of particulars
