Upon the foregoing papers, defendant Alla Kats-Kagan (Kats-Kagan) moves ^[FN1] for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Goncha Muzashvili on the ground that (a) he failed to sustain a serious injury as that term is defined under § 5102 (d) of the Insurance Law ^[FN2], and (b) movant's action played no role in plaintiff's injuries. Defendants Solis F. Vicente (Vicente) and Olivia Garcia (Garcia) cross-move ^[FN3] for an order, pursuant [*2]to CPLR 3212, granting summary judgment dismissing the complaint as asserted against them on threshold grounds.

This action arose from a motor vehicle accident involving an automobile owned and operated by Kats-Kagan and a motor vehicle owned by Vicente and operated by Garcia. The accident occurred on May 26, 2003, at or near the intersection of Bay 14th Street and Benson Avenue in Brooklyn, New York. At his deposition, plaintiff testified that, at the time of the accident, he was a front-seat passenger in the Kats-Kagan automobile which was traveling along Bay 14th Street. According to plaintiff, it was raining heavily on the morning of the accident. Plaintiff further testified that, upon reaching the intersection, Kats-Kagan stopped at a four-way stop sign and looked both ways before proceeding through the intersection. While crossing the intersection, the Kats-Kagan automobile was struck on the passenger side by the Garcia motor vehicle. Plaintiff described the impact as "heavy." Kats-Kagan testified to the same at her deposition. Kats-Kagan also testified that she stopped at the stop sign, looked in both directions and did not see any oncoming traffic from either direction on Benson Avenue. Kats-Kagan further testified that she then proceeded through the intersection at approximately five miles per hour when the Garcia motor vehicle came into contact with her automobile. Kats-Kagan testified that the photographic evidence clearly indicates that the front of the Garcia vehicle struck the passenger side of her vehicle.

In opposition, plaintiff argues that genuine issues of material fact exist precluding an award of summary judgment to Kats-Kagan on the issue of liability. Plaintiff asserts that the police report indicates that both Kats-Kagan and Garcia allege that they stopped at the stop sign and that the responding officer noted that driver inexperience and inattention as the apparent contributing factors of the accident. Plaintiff maintains that both drivers had a duty to maintain a reasonably safe rate of speed, to keep proper lookout under the circumstances then existing, and to use reasonable care to avoid an accident. Thus, plaintiff contends that there is an issue of fact as to Kats-Kagan's comparative negligence.

In reply, Kats-Kagan points out that plaintiff confirms her deposition testimony that she "brought her vehicle to a stop, looked to the left and to the right, saw no cars coming from either direction, and proceeded into the intersection." In addition, Kats-Kagan argues that both Vicente and Garcia are precluded from testifying at the time of trial and, as such, are unable to refute this testimony. Kats-Kagan claims that plaintiff's reliance upon the police accident report is misplaced [*3]as it constitutes hearsay because the responding officer did not witness the accident. Kats-Kagan reiterates her argument that there is no testimony to sustain a finding of negligence as against her.

A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212[b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing to Zuckerman, 49 NY2d at 562). In determining the motion, a court must be mindful that "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978], quoting Moskowitz v Garlock, 23 AD2d 943, 944 [1965]). Moreover, the evidence must be considered in the light most favorable to the party opposing the motion (Henderson v City of New York, 178 AD2d 129, 130 [1991]). Finally, a party seeking summary judgment may not merely point to gaps in the opponent's proof but rather must adduce affirmative evidence of its entitlement to that relief (Torres v Industrial Container, 305 AD2d 136 [2003]).

Based upon a review of the record submitted by the parties, the court finds that Kats-Kagan has satisfied her initial burden of proof entitling her to judgment as a matter of law on the issue of liability. Both Kats-Kagan and plaintiff testified at their depositions that Kats-Kagan stopped at the stop sign and looked in both directions and, upon noticing no oncoming traffic, proceeded through the intersection before being struck by the Garcia vehicle. There has been no evidence submitted to the contrary. The statements in the police report relied upon by plaintiff constitute inadmissible hearsay (Hanly v Quaker Chemical Co., Inc., 29 AD3d 860 [2006]; Gomez v Sammy's Transport, Inc., 19 AD3d 544 [2005]; Wolf v We Transp., 274 AD2d 514 [2000]). Furthermore, Garcia and Vicente were precluded from testifying at the time of trial when they failed to appear for depositions by January 19, 2007 (Unger v Dover Union Free School District, 303 AD2d 677 [2003]; Jenkinson v Naccarato, 286 AD2d 420 [2001]; Stewart v City of New York, 266 AD2d 452 [1999]). As such, there are no issues of liability to be determined. Accordingly, Kats-Kagan's motion for summary judgment on the issue of liability is granted.

In the complaint, plaintiff alleges that he sustained serious injuries as a result of the accident. In the bill of particulars, plaintiff alleges that he suffered, among other things, cervical radiculopathy, lumbar radiculopathy, L4-L5 herniated disc with ventral impingement of the thecal sac and an intra substance tear in the posterior pole of the medial meniscus. Additionally, plaintiff claims that these injuries constitute a significant disfigurement; 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; and/or an impairment within the 90/180 days category of the Insurance Law. [*4]

To succeed on a motion for summary judgment, defendants must meet an initial burden of demonstrating that plaintiff did not sustain a "serious injury" as that term is defined by Insurance Law § 5102 (see Gaddy v Eyler, 79 NY2d 955 [1992]; Omar v Goodman, 295 AD2d 413 [2002]; Fenstamacher v Reyell, 152 AD2d 890 [1989]).

In support of the motion and cross motion, defendants proffer the affirmed report of Dr. Edward A. Toriello, an orthopedist, based upon an independent medical examination of plaintiff conducted on June 9, 2005, at defendants' request. During his examination of plaintiff, Dr. Toriello conducted, among other things, objective tests and range of motion tests of plaintiff's lumbosacral spine, knees and shoulders, including McMurray's test, Tinel's test, straight leg raising test and Lachman's test. Dr. Toriello found that plaintiff's ranges of motion were all in normal ranges. In his report, Dr. Toriello determined that plaintiff's injuries are resolved and that he suffers from no disability. In addition, defendants submit the affirmed report of Dr. Marlon S. Seliger, a neurologist, based upon an independent medical examination of plaintiff conducted on June 13, 2005, at defendants' request. During his examination of plaintiff, Dr. Seliger conducted, among other things, straight leg raising test and range of motion tests of plaintiff's neck. In his report, Dr. Seliger concluded that plaintiff has recovered from his injuries and suffers from no "neurologic disability."

In further support of the motion and cross motion, defendants point to plaintiff's deposition testimony that he returned to work as a handyman after receiving three months of treatment for his injuries following the subject accident. As such, defendants assert that they have satisfied their initial burden of proof entitling them to judgment as a matter of law.

In opposition to the motion and cross motion, plaintiff submits an affidavit in which he avers that for "at least four months after the collision [he] refrained from all physical activity while [he] attended physical therapy." Plaintiff avers that he was unable to work for at least four months after the accident and was advised by his treating doctors to "rest and stay home after the accident and to refrain from heavy or repetitive lifting." Plaintiff claims that since the subject accident, he has "been unable to return to work in [his] full capacity or in any consistent manner." In addition, plaintiff avers that on May 10, 2007, Dr. Salvatore Sclafani advised him that he should "continue to refrain from physical work/labor." According to plaintiff, he discontinued treatment because his no-fault insurance carrier ceased making payments for his treatment. Plaintiff further avers that he still suffers from pain as a result of his injuries and that he can no longer participate in certain activities, "such as cleaning, laundry and grocery shopping."

In addition, plaintiff submits the affirmed report of Dr. Irving Friedman, a neurologist, based upon an examination of plaintiff conducted on May 2, 2007. During his examination of plaintiff, Dr. Friedman conducted range of motion tests of plaintiff's cervical spine and straight leg raising test and compared those results to normal ranges. In his report, Dr. Friedman determined that plaintiff suffers from a "significant and painful multi-level disability." Dr. Friedman is of the opinion that plaintiff's injuries are "permanent in nature and causally related" to the subject accident. Plaintiff also proffers the affirmed report of Dr. Salvatore Sclafani based upon an examination of plaintiff conducted on May 10, 2007. During his examination of plaintiff, Dr. Sclafani conducted, among other things, range of motion tests of plaintiff's cervical and lumbar spines. Dr. Sclafani did not compare the results to the normal range of motion but obtained positive test results for the straight leg raising test on the right side. In his report, Dr. Sclafani stated that plaintiff is disabled as a result [*5]of the subject accident. In addition, plaintiff submits sworn affidavits of Dr. Robert D. Solomon and Stephen Zinn attesting to the results of MRI of plaintiff's cervical spine and lumbar spine.

Plaintiff also proffers an unsworn narrative report from AR Medical Art, P.C. where he received treatment for his injuries; an unsworn neurobehavioral and psycho physiological assessment report dated June 5, 2003; as well as, an unsworn nerve conduction report dated July 22, 2003.

Plaintiff contends that defendants have failed to meet their initial burden of proof entitling them to judgment as a matter of law. Plaintiff maintains that defendants' experts also causally related his injuries to the subject accident. In any event, plaintiff asserts that he has raised a triable issue of fact as to whether he suffered a serious injury.

In reply, defendants argue that plaintiff has failed to submit medical evidence in admissible form sufficient to raise a triable issue of fact as to whether he suffered a serious injury. Defendants assert that plaintiff's expert's reports are based upon examinations conducted four years after the subject accident and thus any findings of causal relation to plaintiff's injuries are speculative. In addition, defendants assert that the narrative reports relied upon by plaintiff's experts are unsworn and, as such, are of no probative value. Defendants contend that plaintiff has failed to explain the gap in his treatment prior to his examination by Drs. Friedman and Sclafani in 2007, nearly four years after the subject accident. As such, defendants reiterate their argument that plaintiff has failed to sustain a serious injury.

Once the defendant has established a prima facie case that the plaintiff did not sustain a "serious injury," the burden shifts to the plaintiff to "come forward with admissible proof to raise a triable issue of fact" (Napoli v Cunningham, 273 AD2d 366 [2000]). If the plaintiff is unable to meet this burden, summary judgment will be granted to defendant (see e.g. Ginty v MacNamara, 300 AD2d 624, 625 [2002]; Sotirhos v Pinello, 209 AD2d 687, 687-88 [1994]).

In order to establish a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system, the plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration (see Grossman v Wright, 268 AD2d 79, 83-84 [2000]; Booker v Miller, 258 AD2d 783, 784 [1999]). This determination relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part (see Toure v Avis Rent-a-Car Sys., Inc., 98 NY2d 345, 353 [2002]).

Furthermore, it is well settled that "[t]o establish . . . a significant limitation, the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild and moderate ones" (Clements v Lasher, 15 AD3d 712, 713 [2005]). Accordingly, it is also well established that "[a] defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)" (Kearse v New York City Transit Authority, 16 AD3d 45, 49 [2005]).

Based upon a review of the record, the court finds that defendants have satisfied their initial burden of proof entitling them to an award of summary judgment as a matter of law on the threshold issue of whether a serious injury was sustained. Defendants' experts, Drs. Toriello and Seliger, conducted objective medical testing of plaintiff and determined that plaintiff's injuries have been [*6]resolved and that he suffers from no disability. Plaintiff has failed to submit sufficient evidence in admissible form demonstrating a "total loss of use" as required under the permanent loss of use category of the Insurance Law (Beutel v Guild, 28 AD3d 1192 [2006]). Plaintiff has also failed to demonstrate that he suffered a serious disfigurement as is claimed in the bill of particulars. With respect to plaintiff's claims of a permanent consequential limitation and a significant limitation of use within the meaning of the Insurance Law, the court finds that plaintiff has provided no medical proof in admissible form that was contemporaneous with the accident showing any initial range of motion restrictions in his spine or right knee (Li v Yun, 27 AD3d 624 [2006]). Despite plaintiff's experts' 2007 statements to the contrary, any such statements causally relating plaintiff's alleged injuries to the subject accident are speculative in nature. With respect to the 90/180 day category, plaintiff failed to submit medical evidence in admissible form demonstrating that he was incapable of performing substantially all of his usual and customary activities during the relevant time period (Ingram v Doe, 296 AD2d 530). Furthermore, the unsworn reports submitted by plaintiff are not in admissible form and, as such, will not be considered by the court. Accordingly, defendants' motion and cross motion to dismiss the instant action on threshold grounds is granted.

Accordingly, the court grants both branches of Kats-Kagan's motion for summary judgment on the issue of liability and threshold grounds. The cross motion of defendants Vicente and Garcia on threshold grounds is also granted.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C.