The following numbered papers were read on this motion: Submitted by Defendant NYSCEF Doc No. 45: Notice of Motion NYSCEF Doc No. 46: Affirmation of Young Choo in Support NYSCEF Doc No. 47: Exhibit A — Summons & Complaint NYSCEF Doc No. 48: Exhibit B — Bill of Particulars NYSCEF Doc No. 50: Exhibit D — Plaintiff’s EBT Transcript NYSCEF Doc No. 51: Exhibit E — Note of Issue NYSCEF Doc No. 52: Exhibit F — Orthopedic IME Report of Dr. Jeffrey N. Guttman NYSCEF Doc No. 53: Statement of Material Facts Submitted by Plaintiff NYSCEF Doc No. 55: Affirmation of Richard R. Mogg in Opposition NYSCEF Doc No. 56: Exhibit 1 — Hospital Records NYSCEF Doc No. 57: Exhibit 2 — Eighth Avenue Medical, PLLC Records NYSCEF Doc No. 58: Exhibit 3 — Integrated Chiropractic, P.C. Records NYSCEF Doc No. 59: Exhibit 4 — MRI Records NYSCEF Doc No. 60: Exhibit 5 — Dr. Arden M. Kaisman Records; EMU Surgery Center Records NYSCEF Doc No. 61: Exhibit 6 — Plaintiff’s EBT Transcript NYSCEF Doc No. 62: Exhibit 7 — Affidavit of Merit NYSCEF Doc No. 63: Exhibit 8 — Bill of Particulars NYSCEF Doc No. 64: Exhibit 9 — Photographs NYSCEF Doc No. 65: Exhibit 10 — Police Report NYSCEF Doc No. 66: Word Count Certification NYSCEF Doc No. 67: Affirmation of Service NYSCEF Doc No. 68: Statement of Material Facts DECISION AND ORDER I. Introduction Plaintiff Zhan J. Chen (“Plaintiff”) asserts in this action that she sustained personal injuries while occupying and operating her vehicle on April 10, 2017, as a result of the negligent operation of another vehicle owned and operated by Defendant Ugur Sahin “(Defendant”). Defendant now moves 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 Defendant bears 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 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 Defendant has 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., Plaintiff failed to establish that she qualified under the relevant serious injury threshold categories, the burden shifts to Plaintiff to submit evidence in admissible form, rebutting the presumption that there are no material issues of fact (see Franchini v. Palmieri, 1 NY3d 536 [2003]; Grasso v. Angerami, 79 NY2d 813 [1991]). II. Bill of Particulars Plaintiff, around 51 years old when the accident occurred, alleged in her bill of particulars that she sustained injuries to her lumbar spine and cervical spine (see NYSCEF Doc No. 48, bill of particulars 10 at 5-7). She asserted that she was confined to bed for approximately three (3) days and confined to home for approximately one (1) week following the accident (see id. 12 at 9). As for serious injury threshold categories, Plaintiff claimed, “permanent loss of use of a body organ, member, function or system ['permanent loss of use']; permanent consequential limitation of use of a body organ or member ['permanent consequential limitation']; significant limitation of use of a body function or system ['significant limitation']; or a medically determined injury or impairment…prevent[ing] the injured person from performing substantially all…daily activities for not less than ninety days during the one hundred eighty days immediately following the [subject accident] ['90/180']” (id. 20 at 11). Notably, the bill of particulars also described Plaintiff’s injuries as follows: Limitations, diminution and/or impairment of functions, activities, vocation, avocation and other activities which Plaintiff engaged in prior to this accident. Impairment of spinal integrity and exacerbation of any pre-existing symptomatic and/or asymptomatic circulatory, podiatric and/or orthopaedic conditions, spondylitic changes, osteoporosis, arthritis, hypertrophic vertebral changes, narrowing of vertebral spaces, degenerative vertebral or disc changes. Aggravation, activation and/or precipitation of any underlying hypertrophic, degenerative, arthritic, circulatory, arterial, venous or systemic conditions complained of…All of the above injuries are permanent in nature and duration, and were caused, precipitated aggravated and/or exacerbated by the aforementioned occurrence. (Id. 10 at 8 [emphasis added]). III. Defendant’s Evidence Defendant’s motion for summary judgment relied on an affirmed independent medical examination (“IME”) report prepared by Dr. Jeffrey N. Guttman, M.D., a Board-certified orthopedic surgeon, on July 15, 2022, detailing the examination of Plaintiff, findings, and conclusions. Defendant also relied on the certified transcript of the examination before trial (“EBT”) of Plaintiff which was conducted on October 18, 2021. It was Defendant’s position that Plaintiff’s injuries were not the result of the April 10, 2017 motor vehicle accident and that Plaintiff did not qualify under any of the four categories cited in her bill of particulars: permanent loss of use, permanent consequential limitation, significant limitation, and 90/180. Regarding causality of any injuries claimed by Plaintiff, Defendant’s counsel argued in their affirmation: 19. Based on the medical evidence submitted by defendants coupled with plaintiffs’ testimony, we submit that plaintiffs’ [sic] allegations of injury were not the result of this minor accident that plaintiffs [sic] did not sustain trauma, and the alleged injuries do not rise to the level of impairment sufficient to qualify under any category of the statute. Specifically, defendants’ [sic] showing includes objective evidence establishing an “absence of trauma.” See, Kester v. Sendoya, 123 A.D.3d 418 (1st Dept. 2014). Defendants provide radiological evidence confirming that no traumatic injury was sustained. This negates a claim of any causally related serious injury under the statute and is therefore sufficient to meet the defendants’ burden on this motion. See Ikeda v. Hussain, 81 A.D.3d 496 (1st Dept. 2011); Johnson v. Singh, 82 A.D.3d 565 (1st Dept. 2011); Arroyo v. Morris, 85 A.D.3d 679 (1st Dept. 2011); Valentin v. Pomilla, 59 A.D.3d 184 (1st Dept. 2009). 20. By eliminating the accident as a cause of the alleged conditions, defendants [sic] eliminate all categories of the statute. See Perl, supra; Toure v. Avis Rent A Car, 98 N.Y.2d 345, 746 N.Y.S.2d 865 (2002); Linton v. Gonzales, 110 A.D.3d 534 (1st Dept. 2013); Rickert, supra; Batista v. Porro, 110 A.D.3d 609 (1st Dept. 2013); Kreimerman v. Stunis, 74 A.D.3d 753 (2nd Dept. 2010); Lall v. Ali, 101 A.D.3d 439 (1st Dept. 2012); Valentin v. Pomilla, 59 A.D.3d 184 (1st Dept. 2009). (NYSCEF Doc No. 46, Young Choo Affirmation
