Upon the foregoing papers, the motion by defendants for summary judgment dismissing plaintiff's complaint on the ground that he has not sustained a serious injury as defined in New York Insurance Law Section 5102(d), is denied.

The cause of action arises out of injuries sustained by the plaintiff in a motor vehicle accident on December 3, 2002 at the intersection of 138th Street and Willis Avenue in Bronx County.

[*2]Under the "no-fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. See, Licari v. Elliott, 57 NY2d 230 (1982). "It is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute." Id. at 237. New York Insurance Law §5102(d), defines "serious injury" as, "...a personal injury which results in...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 party 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."

On a motion for summary judgment, a defendant has the burden of proving that the plaintiff's injuries were not serious. In order for a defendant to establish that the plaintiff failed to sustain a serious injury within the meaning of the statute, the defendant must submit, "...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 (2nd Dept. 2000). Once the defendant has sufficiently raised the issue of whether a serious injury has been sustained, 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 Insurance Law." Id. at 84; Gaddy v. Eyler, 167 AD2d 67 (3rd Dept. 1991). Once the burden shifts, it is incumbent upon plaintiff to produce prima facie evidence in "admissible form" to support the claim of serious injury. Unsworn reports of plaintiff's examining doctor will not be sufficient to defeat a motion for summary judgment. Grasso v. Angerami, 79 NY2d 813 (1991).

In support of their motion, defendants submit the affirmed report of E. Kojo Essuman, M.D., neurologist, who examined the plaintiff on January 5, 2006. Dr. Essuman indicates that there was "full, free, painless range of motion (cervical through lumbosacral)" and a "negative Babinski sign." He concluded that the findings of the neurological examination were "entirely normal, negative and without objective focality." He concluded that the diagnosis was "soft tissue injury which is minor, resolved and without sequelae. There is no clinical correlation between claimant's subjective symptoms and the objectively normal findings on examination." He further concluded that plaintiff has suffered no disability and his activity level was unrestricted.

Plaintiff opposes the motion and correctly asserts that defendant has not established a prima facie case that plaintiff did not sustain a serious injury. Defendant's submission is insufficient. A review of Dr. Essuman's report indicates that he found normal range of motion of plaintiff's cervical and lumbosacral spine. However, Dr. Essuman failed to specify the degree of plaintiff's range of motion and failed to identify what the normal range of motion should be. Webb v. Johnson, 13 AD3d 54 (1st Dept. 2004); Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345 (2002). Moreover, Dr. Essuman's report indicates that the only records reviewed by [*3]him were plaintiff's bill of particulars. There was no indication that he reviewed any of plaintiff's medical records including the MRI taken of his lumbar and cervical spine which indicated that there were disc herniations. See, Webb v. Johnson, (supra); Nix v. Xiang, 19 AD3d 227 (1st Dept. 2005). Moreover, medical reports of an examination performed on plaintiff more than three years after the accident are clearly insufficient for defendant to meet his burden with respect to the 90/180 category. Frier v. Teague, 288 AD2d 177 (2nd Dept. 2001). Accordingly, defendants' submission is insufficient and they failed to establish their prima facie entitlement to judgment as a matter of law.

Since defendants failed to establish their prima facie entitlement to summary judgment as a matter of law, defendant's motion is denied in its entirety and this court need not address the sufficiency of plaintiff's evidence. Trantel v. Rothenberg, 286 AD2d 325 (2nd Dept. 2001); Papadonikolakis v. First Fidelity Leasing Group, Inc., 283 AD2d 470 (2nd Dept. 2001). Even if defendant's submissions were adequate, this court finds that plaintiff has submitted sufficient evidence to raise a triable issue of fact as to whether or not plaintiff sustained a serious injury. Plaintiff's submission of a report from his chiropractor, Stuart N. Landesberg, in admissible form, with whom he treated after the accident, detailed the range of motion tests he performed on the plaintiff on September 20, 2006, including what degrees were considered normal and what the plaintiff's limitations were. He concluded that plaintiff's disability as a result of the accident in 2002, is permanent in nature, he is restricted from performing activities that involve heavy bending or lifting. In addition, Dr. Landesberg states that at the conclusion of plaintiff's treatment with him, he advised plaintiff that he had reached the maximum benefits possible and should do home exercises. Said report coupled with plaintiff's complaint of continued back pains and inability to perform heavy lifting are sufficient to raise a triable issue of fact as to whether or not plaintiff sustained a serious injury.

Accordingly, defendant's motion for summary judgment is denied in its entirety.

This constitutes the decision and order of the court.

Dated January 22, 2007

J.S.C.