On June 13, 2003, plaintiff and defendants were involved in an automobile accident on Murdock Avenue, near its intersection with 212 Street, Queens County. Thereafter, plaintiff commenced an action alleging that he suffered serious physical injuries caused by defendants' negligence.

Issue was joined, discovery proceeded, EBT's were held and Note of Issue filed.

Citing Insurance Law, Section 5102(d), all the rental car defendants, except PV Holding Corp, seek summary judgment, dismissing the action. They assert that plaintiff has not met the standards for serious injuries defined by the section. They allege that the injuries of which plaintiff complains are not serious injuries within the meaning of the section. Further, they seek dismissal on the additional ground that the complaint is meritless because they were not the registered or titled owner of the vehicle that was said to have caused plaintiff's injuries. In support of this defense, defendants point to a police report which says that the "offending vehicle" was registered to defendant PV Holding Corp.

According to these defendants, plaintiff's injuries are, among others: herniated discs at L4 - L5, rotar cuff impingement [*2]of the right shoulder and lumbo-sacral radiculopathy. Finally, say defendants, doctors designated by them have examined plaintiff and expressed their medical opinion that plaintiff does not suffer from any disability as a result of the accident.

Specifically, the moving defendants argue that plaintiff has not shown that his injuries prevented him from performing substantially all of his usual and customary daily activities for at least ninety (90) days of the first one-hundred eighty (180) days immediately after the injuries. They add that plaintiff has not sustained a permanent total loss of use of a body organ, member function or system; nor is there a claim that plaintiff has suffered a permanent consequential limitation of the use of a body function or system or significant limitation of the use of a body organ or member. They emphasize that none of the injuries claimed by plaintiff are serious although plaintiff underwent lumbar surgery in January 2006.

They point to the nature, kind and length of treatment that plaintiff received as demonstrating that the injuries are not serious. They say that the injuries suffered in his September 1997 motor vehicle accident may be the reason for his current medical problems. They suggest that the injuries then and the injuries now are similar.

Defendants say that their orthopedic surgeon, Dr. Leon Sultan, examined plaintiff at their request. Dr. Sultan concluded that plaintiff's right shoulder was "orthopedically stable and neurologically intact." Plaintiff's lumbar spine was normal, his pelvis "not tilted, lordotic curative is maintained." Defendants' radiologist reviewed the July 14, 2003 MRI films of plaintiff's spine as well as the July 20, 2003 MRI films of his right shoulder and found no evidence of bulging or herniated discs in plaintiff's spine and no tear in plaintiff's rotar cuff.

Plaintiff opposes the summary judgment motion. Contrary to the positions taken by defendants, he asserts that he suffered serious injuries as a result of defendants' negligence and that those injuries have continued to adversely affect him since the accident.

Plaintiff contends that he has sustained injuries which have caused permanent consequential limitation of a use of a body organ or member and significant limitation of use of a body function or system. He says that as a result of these injuries, he has been unable to play basketball and other sports. [*3]

He says that while defendants' doctors examined him three (3) years after the accident, his doctor began treating him three and one-half months after the accident. His doctor, he says, reviewed the July 14, 2003 film of his lumbar spine and confirmed the finding of the doctor who originally examined the MRI: that he has disc bulge at L4-L5, herniated disc at L5-S1 and straightening of the normal lordosis.

His doctor concluded, with a reasonable degree of medical certainty, that the injuries were caused by the July 2003 accident. Dr. Radna, who treated him and recommended plaintiff's January 2006 back surgery, is of the view that plaintiff will have to undergo back surgery three or four more times during his (plaintiff's) life time.

As to defendants' claim that they did not own the vehicle that was involved in the accident, plaintiff states that defendants have not conclusively proven that the automobile in question was owned by PV Holding nor have they shown that they did not own the vehicle.

Defendant Blair, in a cross-motion, also seeks dismissal of the action on Section 5102(d) grounds. She adopts the arguments made by the other defendants on the issue of serious injury.

Upon review, the motion and the cross-motion for summary judgment, are denied. Plaintiff has overcome defendants' prima facie showing that he did not meet the standards outlined by the statute. See Toure v. Avis Rent a Car Systems, Inc., 98 NY2d 345, Krease v. NYC Transit Authority, 789 NYS2d 281 {16 AD3d 45} ; Howard v. King, 307 AD2d 278.

Further, a question of fact is raised when defendants say that plaintiff may be suffering form the effects of his 1997 automobile accident. This claim raises the issue of whether the 1997 injuries or the 2003 injuries are the source of plaintiff's present medical condition. Rotuba Extruders v. Ceppos, 46 NY2d 228 mandates denial of a summary judgment motion where there is a question of fact.

Additionally, there is a conflict between the doctors as to the nature and severity of plaintiff's injuries. Finally, there is a question of fact as to the ownership of the injury causing vehicle. Therefore, summary judgment is denied.

Dated: April 18, 2007

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J.S.C.