Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on June 7, 2024, under motion sequence number one, by Malkit Singh and All Zone Construction, Inc. (hereinafter collectively defendants) for an order pursuant to CPLR 3212 dismissing the verified complaint of Quashon Miller (hereinafter the plaintiff) on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law §5102 (d). The motion is opposed. Notice of motion Affirmation in support Memorandum of law in support Statement of material facts Exhibits A-B Affirmation in opposition Memorandum of law in opposition Affirmation in reply DECISION & ORDER BACKGROUND On December 2, 2022, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk’s office (KCCO). On December 20, 2022, the defendants interposed and filed a joint verified answer with the KCCO. On April 10, 2024, plaintiff filed a note of issue. Plaintiff’s complaint alleges the following salient facts. On September 20, 2021, the plaintiff was operating a 2008 Cadillac, bearing New York State registration plate number JNX6662 on Atlantic Avenue and Warwick Street, County of Queens, City and State of New York. On the same time, date, and place, defendant Malkit Singh, was operating a 2013 Ford owned by All Zone Construction, Inc, and bearing New York State registration plate number 90085MK. On that time, date, and place Malkit Singh collided with the plaintiff’s vehicle (hereinafter the subject accident). The subject accident was caused by Malkit Singh’s negligent operation of his vehicle. The subject accident caused the plaintiff to sustain serious physical injuries. 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, 324 [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 any material issue of fact (Giuffrida v. Citibank, 100 NY2d 72, 81 [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, 1063 [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). 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” (Insurance Law §5102 [d]). “[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” (Grossman v. Wright, 268 AD2d 79, 83-84 [2d 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” (id. at 84). “The plaintiff in such a situation must present objective evidence of the injury” (id.). The affirmation of defendants’ counsel directed the Court to NYSCEF document fifteen to review the plaintiff’s bill of particulars. NYSCEF document fifteen, however, did not contain plaintiff’s bill of particulars, rather, it contained the defendant’s bill of particulars. The defendants did not present a bill of particulars from the plaintiff. Consequently, the only evidence setting forth with particularity the injuries that the plaintiff was claiming from the subject accident came from the plaintiff’s deposition. The affirmation of defendants’ counsel referred to the plaintiff’s testimony where he claimed injury to his head, left shoulder, and mid to lower back. Dr. McIntyre conducted the examination more than two years after the plaintiff’s accident and offered no opinion regarding plaintiff’s physical condition during the first six months after the accident. Dr. McIntyre performed a straight leg raise test of the plaintiff in a seated and supine position and stated that both were negative. Dr. McIntyre, however, did not state numerical findings of plaintiff’s range of motion or compare it to what was normal. Consequently, he could not establish that plaintiff did not sustain a serious injury as set forth in Insurance Law §5102 (Shirman v. Lawal, 69 AD3d 838, 839 [2d Dept 2010], citing Walker v. Public Adm’r of Suffolk County, 60 AD3d 757 [2d Dept 2009]). In light of the foregoing, the moving defendants’ motion papers failed to adequately address plaintiff’s claim that he sustained serious physical injuries to his lower back (see Youn Koo Lyu v. Aleksandr, 110 AD3d 715 [2d Dept 2013], citing Bove v. Zanelli, 102 AD3d 644 [2d Dept 2013]). Accordingly, the motion is denied regardless of the sufficiency of the plaintiff’s opposing papers (see Dowling v. Valeus, 119 AD3d 834, 835 [2d Dept 2014], citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). CONCLUSION The motion by defendants Malkit Singh and All Zone Construction, Inc. for an order pursuant to CPLR 3212 dismissing the verified complaint of plaintiff Quashon Miller on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law §5102 (d) is denied. The foregoing constitutes the decision and order of this Court.
