This is one of those rare cases where a plaintiff in an automobile case is entitled to summary judgment on the issue of "serious injury" under the Insurance Law.

The motion by the defendants pursuant to CPLR 3212 and Insurance Law § 5104 for summary judgment dismissing the complaint is denied. The cross motion by the plaintiffs for summary judgment striking certain affirmative defenses and granting plaintiffs summary judgment on the issue of serious injury is granted, and the case shall proceed on the issue of damages. CPLR 3212; Insurance Law § 5104.

This case concerns a motor vehicle accident that occurred on January 4, 2004. By order of this Court dated November 17, 2006, summary judgment on the issue of liability was granted to the plaintiffs. On this motion the defendants move for dismissal on the "serious injury" threshold, claiming that neither plaintiff can demonstrate the presence of such an [*2][*3]injury within the meaning of Insurance Law § 5102(d), and thus do not possess a cause of action for non-economic loss pursuant to Insurance Law § 5104(a). The plaintiffs cross move for summary judgment on this issue, claiming that such injuries exist.

In the Bill of Particulars, dated June 20, 2005, plaintiff Mira Deeks ("Mira") claims a serious injury under one or more of the following categories: a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her 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. See Insurance Law § 5102(d).

As recited in the Bill, Mira claims that the foregoing resulted from disc herniations of the cervical and lumbar spines, with impingement on the spinal canal and accompanying restrictions of motion in these areas. She also asserts that she has not worked since the accident, and contends that the accident caused urine discharge and bladder problems.

In order to support their application for summary judgment, the defendants were compelled to present competent proof in admissible form demonstrating that Mira did not suffer a serious injury under any of the four categories cited. They submit the affirmed reports of a neurologist, John Keleman, M.D., and of a urologist, Nathan A. Newman, M.D. The examinations underlying their reports were conducted in August, 2006 (Keleman) and October, 2006 (Newman).The Court finds that defendants have failed to meet their burden of making out a prima facie showing that Mira did not suffer a "serious injury" under the Insurance Law. Insurance Law § 5102(d).

While both physicians note the reports of disc herniations, based on MRIs taken shortly after the accident, neither performed any testing on the affected areas, nor demonstrated that these herniations do not constitute a serious injury and/or were not causally related to the accident. See, DeJesus v Tanenbaum, 29 AD3d 852 (2d Dept. 2006); Esony v Benitez, 2 AD3d 673 (2d Dept. 2003); Zavala v DeSantis, 1 AD3d 354 (2d Dept. 2003). Further, neither addressed the assertion that Mira has not returned to work after the accident, as stated in the Bill of Particulars, and as the report of Dr. Kelman indicated she reported to him at the time of his examination. See, Nakanishi v Sadaqat, 35 AD3d 416 (2d Dept. 2006); Jocelyn v Singh Airport Serv., 35 AD3d 668 (2d Dept. 2006). Accordingly, this Court is required to deny the motion as it is directed to Mira, without consideration of the strength of the opposing papers. See generally, Winegrad v New York University Med. Ctr., 64 NY2d 851 (1985).

Plaintiff Andre Deeks ("Andre") states the same statutory bases as Mira for maintaining this action. In his case, the factual support for his claims are that he suffered, inter alia, disc herniations of the cervical and lumbar spines, with impingement on the spinal canal and restriction on motion of the cervical spine. He also claims increased episodes of [*4][*5]seizures. The Bill of Particulars further states that he has not worked since the date of the accident.

As with Mira, the Court finds that the defendants have not made out a prima facie case of entitlement to judgment as a matter of law as against Andre. They submit the affirmed report of the neurologist, John Keleman, M.D. However, here too the report does not address the restrictions on movement claimed, nor the failure to return to work, which Dr. Keleman noted Andre told him did not occur until "about a year" after the accident. Nor, in Andre's case, does Dr. Keleman explain the basis for his conclusion that there is no causal relationship between the accident and the increased frequency of seizures thereafter. Accordingly, under the authority cited above, the Court must find that the defendants have not succeeded in shifting the burden of proof to the plaintiffs, and must deny the motion on that basis.

The cross motion by the plaintiffs for summary judgment on the issue of serious injury is granted. Although far less common than one made by a defendant, a motion for summary judgment on the issue of "serious injury" may be granted in a plaintiff's favor in a proper case. See Horton v Warden, 32 AD3d 570 (3d Dept. 2006); Cook v Garrant, 27 AD3d 984 (3d Dept. 2006); Boorman v Bowhers, 27 AD3d 1058 (4th Dept. 2006); Mustello v Szczepanski, 245 AD2d 553 (2d Dept. 1997). Accordingly, if the plaintiff can make a prima facie showing of such an injury, a defendant must address the issue and advance proof proving that an issue of fact exists with regard thereto, under the well-established rules for summary judgment. See generally, GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). In the present case, the admissible proof presented by the plaintiffs is sufficient with regard to the "90/180" category of serious injury, and the defendants have not rebutted it.

By way of the affirmations and reports of Richard J. Rizzuti, M.D., a radiologist who directed the taking of the MRIs, the plaintiffs have established, prima facie, the presence of the herniations and impingements claimed. The plaintiffs also have submitted their own affidavits in which, inter alia, they set forth the short-term deleterious effects the accident had on their lives and business; both are art dealers. Andre asserts a violent impact from the collision, and that following the accident he was confined to bed for 3-4 weeks and to his home for almost four months, and was unable to attend to his employment for that latter period. Mira also claims a violent impact, and that she too was confined to bed for 3-4 weeks and to her home for four months following the accident. In her case, she asserts that for five months after the accident she was unable to attend to the business. In both cases, they state that as art dealers they must meet and entertain prospective clients, arrange sales and take those steps necessary to consummate such sales, and were unable to do so for the periods indicated.

The plaintiffs also submit the affirmations of Sang Y. Lee, M.D. regarding testing and treatment he rendered to them. Dr. Lee's records indicate that such treatment continued until [*6][*7]the end of March, 2004. ^[FN1] The Court initially finds that this submission is not sufficient to establish prima facie proof any permanent injury. There are no references by Dr. Lee to recent objective testing concerning the status of any nerve or orthopedic injury, or the claimed restrictions on use and range of motion of affected areas, rendering his conclusions regarding the presence of permanent injuries without force. Grossman v Wright, 268 AD2d 79 (2d Dept. 2000); Cardillo v Xenakis, 31 AD3d 683 (2d Dept. 2006). The presence of the herniations found in the MRIs, standing alone, are insufficient in this regard. See, Pierre v Nanton, 279 AD2d 621 (2d Dept. 2001). In any event, to the extent the nerve conduction and EMG testing as described by Dr. Lee might constitute a basis for his conclusion that the plaintiffs were permanently injured, such claims are contested by the affirmations of Dr. Keleman, creating an issue of fact.

However, as noted the record demonstrates that Dr. Lee treated the plaintiffs immediately after the accident, and for a period that extended at least through the end of March, 2004. His affirmation and records provide reports of objective testing in the form of the nerve conduction studies and EMGs, as stated. Combined with other tests and positive findings made by Dr. Lee on physical examination, and the confirmation of disc herniations as reported by Dr. Rizzuti, the Court finds that plaintiffs have presented an objective medical basis for their initial complaints of pain, tenderness and restrictions on motion, and that these conditions were caused by the subject accident. This proof thus supports the claimed difficulty in sitting, standing or walking for extended periods of time, and the attendant inability to pursue their business for, respectively, four months (Andre) and five months (Mira) following the accident. See, Toure v Avis Rent A Car Sys., 98 NY2d 345, 352-353 (2002). It is therefore sufficient to establish a prima facie case of a "serious injury" in the 90/180 category. See, Ellithorpe v Marion, 34 AD3d 1195 (4th Dept. 2006); Howard v King, 307 AD2d 278 (2d Dept. 2003); Sands v Stark, 299 AD2d 642 (3d Dept. 2002); cf., DeMarchi v Martinez, 224 AD2d 651 (2d Dept. 1996).The burden thus shifts to the defendants to advance proof demonstrating that there are issues of fact with regard to the presence of a serious injury satisfying this particular statutory definition.

The defendants advance no proof in opposition to the foregoing. Rather, they rely on the same arguments and proofs provided on their own motion, submitting only the affirmation of their attorney, which is on its own insufficient. See Marietta v Scelzo, 29 AD3d 539 (2d Dept. 2006); Mustello v Szczepanski, supra. Accordingly, the plaintiffs' cross motion is granted.

This shall constitute the Decision and Order of this Court. [*8][*9]

E N T E R

DATED: March 9, 2007

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: