Defendants S&R Truck Rental Inc and John J. Winters move for an order pursuant to CPLR 3212 and Vehicle and Traffic Law section 388 (1) granting the defendant S&R Truck Rental, Inc. (hereinafter "S&R"), summary judgment dismissing the complaint of the plaintiff upon the ground that the complaint is without merit as defendant S&R was not the titled or registered owner of the subject vehicle and therefore owes no legal duty to the plaintiff. Defendants also seek summary judgment on the grounds that the plaintiff has not sustained a serious injury as defined by Insurance Law section 5102 (d). Plaintiff cross-moves for an order granting plaintiff permission to serve a supplemental summons and amended complaint on Team Fleet Financing Corporation and Ryder TRS, Inc., to amend the caption to reflect the addition of these two entities as defendants, and directing that service of process on these entities be made on the Secretary of State. Plaintiff commenced this action seeking damages for injuries allegedly sustained on October 20, 2001, as the result of a motor vehicle accident on Linden Boulevard at [*2]the intersection with Van Sinderen Avenue, Brooklyn, New York. Plaintiff alleges that the motor vehicle that he was driving collided with a motor vehicle that was operated by defendant John J. Winters (hereinafter "Winters") and owned by defendant S&R.

The police accident report states that the vehicle that collided with plaintiff's vehicle was owned by defendant S&R. However, defendants assert and plaintiff does not deny that motor vehicle records indicate that the vehicle was actually owned by Team Fleet Financing Corp. and Ryder TRS. Although the accident report stated that S&R was the owner of the vehicle, plaintiff had several indications that this indeed was not the case. When defendant S&R interposed its answer in this action, it denied ownership of the vehicle. Furthermore, when S&R was served by plaintiff with a Notice to Admit, S&R again denied ownership. On September 11, 2002, plaintiff was informed by defendant S&R's attorneys that Ryder TRS, Inc. filed for bankruptcy in the United States District Court, District of Delaware, staying the present action. On July, 15, 2003, plaintiff was notified that the stay was modified to allow this action to proceed. On February 26, 2004, defendant Winters was deposed. At his deposition, Winters testified that the car that he was driving at the time of the accident was a "Rent a Car, Ryder rent a truck". He stated that the vehicle had Ryder written across it. Plaintiff's assertions that defendant Winters must have provided the police with registration showing that S&R was the owner of the vehicle and that some sort of relationship must exist between S&R and the registered owners is merely conjecture, speculation and surmise unsupported by any probative evidence, and therefore, insufficient to defeat a motion for summary judgment (see Alvarez v Prospect Hospital, 68 NY2d 320 (1986).Therefore, summary judgment is granted as to defendant S&R and the complaint and all cross claims as asserted against defendant S&R are dismissed.

However, plaintiff cross moved for leave to amend the pleadings to add Team Fleet Financing Corporation and Ryder TRS, Inc. as defendants. Leave to amend pleadings should be freely given absent prejudice or surprise resulting from the delay (see Fahey v County of Ontario, 44 NY2d 934 [1978]). Mere lateness is not a barrier to an amendment, and significant prejudice must be determined to justify the denial of an application for an amendment (Hilltop Nyack Corp. V TRMI Holdings, Inc., 275 AD2d 440 [2nd Dept. 2000]). Moreover, the failure to offer an excuse for the delay does not alone, bar amendment adsent a showing of prejudice resulting from the delay (see Northbay Const. Co., Inc. V Bauco Const. Corp., 275 AD2d 310 [2nd Dept. 2000]). Although, the statute of limitations has run in this instance, where a driver operates a vehicle with the permission of the owner, the two are united in interest since the owner is vicariously liable for the negligence of the driver (see Poulard v Papamihlopous, 254 AD2d 266 [2nd Dept. 1998]). Moreover, New York Law requires merely mistake not excusable mistake on the part of the plaintiff seeking the benefit of the relation-back doctrine (see Pappas v 31-08 Café Concerto, Inc., 5 AD3d 452, 453 [2nd Dept. 2004]). Consequently, plaintiff is entitled to amend the complaint to add Team Fleet Financing Corp. and Ryder TRS Inc. as named defendants.

With respect to defendant Winter's motion to dismiss for plaintiff's failure to sustain "serious injury", the plaintiff alleges in his bill of particulars that he sustained the following injuries: torn left labrum, traumatic chondromalacia to glenoid cavity; subacromial synvitis and bursitis with impingement syndrome and partial tearing of the left rotator cuff. Plaintiff underwent left [*3]shoulder surgery. Plaintiff also alleged scarring to the sugical site, left shoulder sprain, left shoulder derangement, impingement syndrome, left shoulder, cervical sprain/strain, left C7 radiculopathy, L2/3 through L5/S1 posterior subligamentous disc bulges, lumbar sprain/ strain, lumbar disc bulges, contusion to the left ankle, right hip and right thigh, cervical Kyphosis compatible with reflex muscle spasm. Plaintiff contends in his bill of particulars that as a result of the trauma he sustained pain, tenderness, restricted and limited motion, persistent recurring limping, enlargement and swelling and plaintiff may develop traumatic arthritis.

In support of the motion, defendants submitted a report, affirmed pursuant to CPLR 2106, completed by their orthopedic surgeon, Philip G. Taylor, MD who examined plaintiff on August 11, 2004. Dr. Taylor conducted range of motion tests on plaintiff's cervical spine and found left rotation 30 degrees (normal 60 degrees), right rotation 45 degrees (normal 60 degrees), extension 15 degrees (normal 45 degrees), and flexion 45 degrees (normal 45 degrees). Dr. Taylor noted that voluntary active flexion of the lower spine was achieved to 60 degrees while normal is 80 degrees. Dr. Taylor asserted that the straight leg raising test in the supine position was stated to cause pain bilaterally at 30 degrees. However, the straight leg raise was repeated in the sitting position and there was no evidence of pain to 90 degrees on either side. Dr. Taylor noted that an inconsistent straight leg raising being positive in the supine position and negative in the sitting position represents an additional inorganic finding. Dr. Taylor stated that review of the plaintiff's MRI films taken on November 25, 2001, revealed negative findings with regard to fracture or subluxation and that the films rule out structural cervical spine injury.

Dr. Taylor also reviewed the films of the MRI of the plaintiff's lumbosacral spine taken on December 3, 2001. Dr. Taylor noted that a lumbar lordosis was present. He found that the disc spaces within the lumbar region are maintained for normal height and a rudimentary disc space can be identified at S1-S2. Dr. Taylor noted minimal bulging discs were present involving the L3-L4 and L4-L5 disc spaces that do not contact the thecal sac. Dr. Taylor stated that bulging discs are recognized to be the result of a gradual iterative process and are not caused by injury.

Dr. Taylor examined the plaintiff's left shoulder and found healed portals of prior arthroscopic surgery. The plaintiff described diffuse tenderness involving the entire left shoulder girdle including the area of the left scapula. Dr. Taylor performed range of motion testing on plaintiff's shoulder and found voluntary active range of motion for the left shoulder with overhead elevation 100 degrees, external rotation 45 degrees and internal rotation was achieved to place the left hand to the left buttock. However, left shoulder overhead could not be increased beyond 100 degrees and plaintiff indicated pain with left shoulder movement. Dr. Taylor stated that examination of plaintiff's right shoulder was normal.

In opposition to the motion, plaintiff submitted the affirmations of radiologist, Robert Diamond M.D., Albert Villafuerte M.D., and orthopedic surgeon Daniel W. Wilen M.D. Dr. Diamond stated that on December 4, 2001, he read and reviewed MRI films of the plaintiff's lumbar spine and concluded that Schmorl's Invaginations was noted and posterior subligamentous disc bulges were identified from the L2/3 through L5/S1 levels. [*4]

Dr. Villafuerte reported that he first examined the plaintiff on October 31, 2001. At that time, plaintiff complained of neck, back, left forearm and left shoulder pain. Dr. Villafuerte conducted range of motion testing on plaintiff's cervical and lumbar spine. Dr. Villafuerte found that plaintiff's cervical spine tested at 15 degrees out of a normal 60 degrees for extension representing a 75% restriction; and 35 degrees out of a normal 50 degrees for flexion representing a 30 % restriction. Plaintiff's lumbar spine tested at 20 degrees out of a normal 25 degrees of extension representing a 20% restriction; and he tested at 35 degrees out of a normal 80 degrees for bilateral rotation representing a 67% restriction. Dr. Villafuerte referred plaintiff for a program of physical therapy and determined that he was unable to return to work as a car service driver. Dr Villafuerte stated that he conducted a NCV/EMG of the plaintiff's cervical spine, on December 12, 2001. And the results of that test revealed denervation in the left C7 myotome, which was consistent with left C7 radiculopathy.

Dr. Villafuerte last examined plaintiff in March of 2002. At that time, range of motion testing of plaintiff's cervical spine revealed 35 degrees out of a normal 40 degrees for cervical extension, a 13% deficit; 50 degrees out of a normal 60 degrees for cervical flexion, a 17% deficit and he tested at 30 degrees for bilateral flexion. Dr. Villafuerte found that plaintiffs lumbar spine tested at 30 degrees out of a normal 40 degrees for lumbar extension, a 25% deficit; 50 degrees out of a normal 80 degrees for bilateral rotation, a 38% restriction and 25 degrees for bilateral flexion, a 59% restriction. Dr. Villafuerte reported that his examination of plaintiff's left shoulder was positive for a supraspinatus test. Plaintiff complained of pain on active flexion and abduction. Plaintiff was able to abduct 80 degrees out of a normal 150 degrees, a 47% restriction; and he tested on flexion at 90 degrees out of a normal 180 degrees, a 50% restriction. Dr. Villafuerte opined that the plaintiff has suffered permanent injuries to his spine and supporting structures and that plaintiff's lower back trauma was caused by the October 20, 2001 accident which resulted in post traumatic disc bulges which caused the various soft tissues to become inflamed.

Dr. Wilen reported that he first examined plaintiff on January 15, 2002 and continued to treat him through November 13, 2003. Dr Wilen stated that he performed arthroscopic surgery on plaintiff's left shoulder on March 13, 2003. Dr. Wilen performed range of motion testing on plaintiff which revealed limitations in plaintiff's left shoulder, cervical spine and lumbar spine. Dr. Wilen stated that his preoperative diagnosis was based on plaintiff's left shoulder MRI films. Dr. Wilen's diagnosis was internal derangement of the left shoulder with impingement syndrome and partial tearing of the rotator cuff which in his opinion to a reasonable degree of medical certainty was due to the October 20, 2001 motor vehicle accident. Dr. Wilen found that the plaintiff's prognosis was guarded and that his injuries are permanent.

Defendant Winter's has failed to establish that he is entitled to summary judgment based on the ground that plaintiff has not sustained a serious injury. Contrary to defendant's assertions, the plaintiff's medical experts' findings, based on objective evidence including an MRI, tests and reports, raise issues of fact as to whether the plaintiff sustained serious injury within the meaning of the New York State Insurance Law (see Toure v Avis, 98 NY2d 345 [2002]). Moreover, the parties conflicting medical expert affidavits create material issues of fact which must be resolved [*5]by a jury at trial (see Garcia v Long Island MTA, 2 AD3d 675 [2nd Dept. 2003]).

Accordingly, defendants' S&R's motion for summary judgment is granted to the extent that the complaint and all cross claims are dismissed as against defendant S&R. Defendant Winters motion to dismiss is denied based on questions of fact which are raised by the plaintiff's papers. Plaintiff's cross motion to amend and to serve a supplemental summons and complaint on Team Fleet Financing Corp. and Ryder TRS Inc. by service of process on the Secretary of State is granted.

This constitutes the decision and order of this court.

Dated: July 5, 2005

ENTER: LAURA L. JACOBSON, JSC