The Plaintiff commenced this action on May 21, 2004 seeking to recover damages for personal injuries allegedly sustained in an automobile accident on March 20, 2004. Issue was joined on or about June 8, 2004. The third-party action was commenced on or about June 8, 2004; and, issue was joined therein on or about August 18, 2004. The Defendant now moves for summary judgment, alleging the Plaintiff has not suffered a "serious injury" as defined by Insurance Law § 5102(d). The Third-Party Defendant supports the motion; and, the Plaintiff opposes same.

Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movant must first make a showing of [*2]entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant's failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985) Such is the case before this court.

In support of his motion, the Defendant submits a copy of the police report regarding the subject accident, the pleadings in the above captioned actions, the Plaintiff's Verified Bill of Particulars, the affirmed report of Dr. Lawrence J. Robinson, a neurologist retained by the Defendant to examine the Plaintiff, dated July 17, 2006, and the affirmed report of Dr. Isaac Cohen, an orthopedist retained by the Defendant to examine the Plaintiff, dated October 11, 2006.

The Plaintiff's Complaint alleges, inter alia, that the Plaintiff sustained serious injuries as defined by Insurance Law § 5102(d) and that as a result the Plaintiff "was prevented from attending to her [sic] usual and customary duties, vocations and/or avocations and that said injuries are permanent in nature." (Complaint ¶ 8) In his Verified Bill of Particulars, the Plaintiff specifically alleges that as a result of the subject collision he sustained bulging discs at C5-6 and L5-S1, tendinosis, cervical sprain, spinal stenosis, lumbosacral sprain, thoracic and lumbosacral neuritis, cervical subluxation, cervical myofascitis, brachial neuralgia, lumbosacral subluxation, lumbosacral neuralgia sciatica, brachial neuritis, concussion and post-concussion syndrome and a sprained right ankle. The Plaintiff further alleges that he was confined to bed for two weeks immediately following the collision, was confined to home for approximately six months immediately following the collision and was incapacitated from his employment as a bill collector for one year.

The affirmed report of Dr. Lawrence J. Robinson, submitted by the Defendant in support of this motion, is based upon his review of certain medical records provided to him and his neurologic examination of the Plaintiff conducted on July 17, 2006. Among the records reportedly reviewed by Dr. Lawrence are a report of a cervical MRI dated May 24, 2004 noting straightening and a focal bulge at C5-6; a report of a thoracic MRI dated June 4, 2004 noting the loss of hight of some of the mid thoracic intervertebral discs; and a report of a lumbar MRI dated August 5, 2004 noting a focal bulge at L5-S1. Dr. Lawrence reports Plaintiff's complaints, at that time, to include headaches two to three times per week, with occasional nausea associated with the headaches, and low back pain which can be exacerbated with bending and accompanied by occasional spasm. Dr. Lawrence further notes that the Plaintiff tried to return to work, but could not continue "because he could not sit for any length of time because of his low back condition." (Lawrence Report 7/17/06, p. 1)

At the time of his examination, on July 17, 2006, Dr. Lawrence reported finding the Plaintiff to be in no acute distress, his neck supple, no focal tenderness or spasm, with normal cervical ranges of motion in all planes, the Plaintiff complained of low back discomfort with lumbar flexion at ninety degrees, no lumbar spasm and normal ranges of motion in the lumbar spine in all planes, except for a thirty degree restriction by the Plaintiff when lying flat. [*3]According to Dr. Lawrence, at that time, the Plaintiff's cranial nerves were equal, pupils were reactive, discs were sharp, and extraocular movements were full. Dr. Lawrence reported the Plaintiff's motor strength to be normal and his reflexes to be symmetric throughout. Dr. Lawrence indicated that his sensory examination revealed decreased pinprick in the right lower extremity, but concluded that "the findings do not fit into a specific radicular dermatomal or neuropathic distribution." (Lawrence Report 7/17/06, p. 2) Dr. Lawrence also reported that the Plaintiff's gait was normal, not antalgic, and that he could heel and toe walk without any difficulty bilaterally.

It was Dr. Lawrence's impression that, "Today's neurologic exam is without any objective evidence of dysfunction localizing to the central or the peripheral nervous system[;]" (Lawrence Report 7/17/06, p. 2) and, he concluded that "There is no evidence of neurologic disability with respect to the 3/20/04 incident." (Lawrence Report 7/17/06, p. 2)

Dr. Cohen reported that he performed an orthopedic evaluation of the Plaintiff on October 11, 2006. Dr. Cohen reviewed many of the same medical reports reviewed by Dr. Lawrence and elicited complaints of headaches, back pain and the inability to sit for prolonged periods of time from the Plaintiff. Dr. Cohen also indicates that the Plaintiff lost approximately one year from work following the subject collision.

Dr. Cohen reports that, at the time of his examination, the Plaintiff had normal curvature of the cervical spine, no spasm or trigger points in this area and normal cervical motion in all planes. Strength in the upper extremities was reported to be normal; sensation in the upper extremities was said to be in tact and the ranges of motion in the shoulders, elbows and wrists were reported to be normal. Dr. Cohen states that a normal lordotic curve was noted in the thoracolumbar spine, that there was not evidence of spasm or trigger points in this area and that the range of motion in all planes was normal. During this examination, according to Dr. Cohen, the Plaintiff could stand on his heels and toes without difficulty, straight leg raising was negative to ninety degrees in the seated position, sensation in the lower extremities was normal, and a neurological examination of the lower extremities was unremarkable. Dr. Cohen further reports finding the Plaintiff's left shoulder ranges of motion to be normal.

Dr. Cohen diagnosed the Plaintiff as "Status post motor vehicle accident, mild cervical and lumbosacral strain, resolved. Mild left shoulder contusion, resolved." (Cohen Report 10/11/06, p. 3) Dr. Cohen concluded that "At the time of this evaluation, from the orthopedic viewpoint, the claimant has no evidence of residual disability or permanency related to this accident ...[;]" and, he concluded, "No evidence of residual disability, permanency or sequella related to this accident is noted." (Cohen Report 10/11/06, p. 3)

It has been long recognized that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries (citation omitted)." Dufel v. Green, 84 NY2d 794, 798, 622 NYS2d 900, 902 (1995); see also: Toure v. Avis Rent A Car System, Inc., 98 NY2d 345, 746 NYS2d 865 (2002) The determination of whether or not a plaintiff has sustained such significant injuries, or be barred from recovery, is to be made by the court in the first instance. Licari v. Elliott, 57 NY2d 230, 455 NYS2d 570 (1982); Nolan v. Ford, 100 AD2d 579, 473 NYS2d 516 (2nd Dept. 1984) aff'd 64 NY2d 681, 485 NYS2d 5826 (1984); Porcano v. Lehman, 255 AD2d 430, 680 NYS2d 590 (2nd Dept.1998)

As with any summary judgment motion, where it is the defendant who seeks such relief, alleging that a plaintiff has not sustained a serious injury, the defendant must making a prima facie showing that the plaintiff did not sustain a serious injury, as defined by Insurance [*4]Law § 5102(d). see: Eybers v. Silverman, 37 AD3d 403, 830 NYS2d 240 (2nd Dept. 2007); O'Leary v. Bravo Hylan, LLC, 8 AD3d 542, 778 NYS2d 700 (2nd Dept. 2004) It is the opinion of this court that the Defendant has failed to make such a prima facie showing.

While both of the Defendant's doctors conclude that at the time of their examinations of the Plaintiff he showed no evidence of any limitation of motion or disability, neither one of them "set forth the objective tests he performed during his examination of the plaintiff which led him to conclude that the plaintiff suffered no limitation to the range of motion in his neck, back (citations omitted)." Junco v. Ranzi, 288 AD2d 440, 733 NYS2d 897 (2nd Dept. 2001); see also: Minlionica v. Shahabi, 296 AD2d 569, 745 NYS2d 715 (2nd Dept. 2002); Ilardo v. New York City Transit Authority, 28 AD3d 610, 814 NYS2d 201 (2nd Dept. 2006) "Their failure to set forth the objective test or tests performed' supporting their claim that there was no limitation of range of motion warrants denial of summary judgment on the ground that they failed to establish [his] entitlement to judgment as a matter of law (citation omitted). Black v. Robinson, 305 AD2d 438, 759 NYS2d 741 (2nd Dept. 2003); see also: Palladino v. Antonelli, 40 AD3d 944, 836 NYS2d 656 (2nd Dept. 2007); Geba v. Obermeyer, 38 AD3d 597, 832 NYS2d 70 (2nd Dept. 2007);

In addition thereto, although the Defendant submitted a copy of the Plaintiff's Verified Bill of Particulars alleging that the Plaintiff was out of work for one year following the subject collision and was confined to home for approximately six months, and both doctors acknowledged the Plaintiff's time out of work in their reports, neither doctor "addressed the major allegation contained in the plaintiff's bill of particulars" concerning the Plaintiff's alleged disability for 90 days during the first 180 days following the subject collision. This too mandates the denial of the Defendant's motion. Nembhard v. Delatorre, 16 AD3d 390, 791 NYS2d 144 (2nd Dept. 2005); Onder v. Kaminski, 303 AD2d 665, 757 NYS2d 571 (2nd Dept. 2003)

Similarly absent from the Defendant's doctors' affirmed reports is any discussion of the diagnoses and findings of the Plaintiff's treating providers, which were reviewed by the Defendant's doctors, showing, among other things, bulging discs, straightening of the cervical lordosis, loss of height of some intravertebral discs, evidence of tendinosis, loss of range of motion in the neck and back in all planes, and decreased motor strength and diminished reflexes in the right arm and right knee. The failure to include such a discussion in their reports is fatal to the Defendant's motion. Hubert v. Tripaldi, 307 AD2d 692, 763 NYS2d 165 (3rd Dept. 2003)

Finally, the affirmed reports of Doctors Cohen and Lawrence were based upon examinations of the Plaintiff conducted more than two years after the subject collision and, as such, were "insufficient to establish [he] did not sustain a medically determined injury or impairment of a non-permanent nature which prevented [him] from performing substantially all of the material acts which constituted [his] usual and customary daily activities for a period of not less than 90 days during the 180 day period immediately following the accident (citation omitted). Frier v. Teague, 288 AD2d 177, 732 NYS2d 428 (2nd Dept. 2001)[defense examination performed more than three years after collision]; see also: Peplow v. Murat, 304 AD2d 633, 758 NYS2d 160 (2nd Dept. 2003) [defense examination performed two years after collision]; Perez v. Ali, 23 AD3d 363, 804 NYS2d 115 (2nd Dept. 2005) [defense examination performed three to four years after collision]; Scott v. Roudellou, 291 AD2d 550, 737 NYS2d 873 (2nd Dept. 2002) [defense examination performed three years after collision]; Connors v. Center City, Inc., 291 AD2d 476, 738 NYS2d 219 (2nd Dept. 2002) [defense examination performed one and one-half [*5]years after collision]

Given the Defendant's failure to establish his entitlement to summary judgment as a matter of law, the sufficiency of the plaintiff's papers in opposition need not be considered. Ervin v. Helfant, 303 AD2d 716, 756 NYS2d 870 (2nd Dept. 2003); Gamberg v. Romeo, 289 AD2d 525, 736 NYS2d 64 (2nd Dept. 2001)

Accordingly, the Defendant's motion for summary judgment is denied.

Dated: Hempstead, New York

August 16, 2007

___________________________

ANDREW M. ENGEL

J.D.C.