Plaintiff commenced this action seeking to recover for personal injuries suffered in an automobile accident. By way of this motion, defendants move for an order granting summary judgment dismissing the complaint based upon plaintiff's failure to establish a serious injury pursuant to Insurance Law § 5102.

On Sunday, July 14, 2002, at approximately 6:55 p.m., plaintiff Jaclyn Wagner, was operating her 1996 Chevrolet traveling in a westerly direction on Colesville Road as it approached an intersection with North Road in the Town of Colesville, New York. A vehicle being operated by Gordon H. Hartford and owned by Allen K. Hartford was traveling in a northerly direction on North Road and is alleged to have proceeded through said intersection without stopping or yielding the right of way causing a collision with the Wagner vehicle. The force of the collision allegedly caused the Wagner vehicle into a culvert and berm, flipping several times, causing personal injuries to plaintiff herein.

Plaintiff's Verified Bill of Particulars alleges she suffered a serious injury under the following categories: (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; and (4) the so-called 90/180-day category (Plaintiff's Verified Bill of Particulars, ¶ 6 [Def Ex E]; Insurance Law § 5102). That having been said, however, plaintiff conceded at oral argument that her opposing papers to this motion discuss only the 90/180 day category. Thus, the court deems plaintiff to have withdrawn the other cited categories and this decision need only address the 90/180 day category.

From a procedural standpoint, plaintiff commenced this action by filing a summons and complaint on January 10, 2005 (hereinafter the "Wagner Action"). One of the passengers of the Wagner vehicle, Jennifer Sutliff, commenced a separate action against the defendants by filing a summons and complaint on July 2, 2004 (hereinafter the "Sutliff Action").^[FN1] Defendants Hartford moved for an order pursuant to CPLR § 602 joining these matters for trial. On March 7, 2005, this court signed an Order directing that the Wagner action and the Sutliff action would be joined for purposes of discovery, however, the court reserved decision on the issue of whether these actions would be joined for trial with leave to all parties to renew said request upon the completion of discovery.^[FN2]

On a defense motion seeking summary judgment relative to the serious injury threshold, [*2]it is well-settled that the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [2003]). Assuming a defendant meets this initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [2003]).

The 90/180-day serious injury category requires proof of a "[m]edically determined injury or impairment of a non-permanent nature which prevents the injured person 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" (Insurance Law § 5102 [d]). To satisfy this category, plaintiff must establish her usual activities were curtailed "to a great extent rather than some slight curtailment," as well as objective medical findings of a medically determined injury or impairment of a nonpermanent nature which caused the alleged limitations on her daily activities (Licari v Elliot, 57 NY2d 230, 235 [1982]; Monk v Dupuis, 287 AD2d 187, 191 [2001]).

Plaintiff alleges to have suffered a multitude of injuries as follows:

[a] cervical spine sprain, low back sprain; left sided neck pain; left shoulder pain; Left sided weakness; left shoulder; low back pain; Pain and discomfort in shoulder: diffuse neck pain; tenderness in a/c joint; anterior flex 60 degrees; Abduction 45 degrees; diminished range of motion-back; cervical spine sprain [sic]; low back sprain [sic]; contusion right shoulder; lower back sprain [sic]; persistent back discomfort; persistent cervical lumbar and thoracic pain; lost of consciousness; pain-left shoulder and neck [sic]; pain-middle left upper abdominal; pain-left side neck; restricted R.O.M. cervical spin; tenderness to palpitation-left trapezius and shoulder; unable to abduct and elevate left shoulder; tightness and tenderness; palpable nodules; ribs-painful; left hand swollen; occasional numbness; lower abdominal discomfort; limited R.O.M. cervical spine; cervical sprain; shoulder strain; contusions of stomach; severe physical pain; severe emotional distress and post traumatic stress syndrome"^[FN3]

(Plaintiff's Affidavit ¶6).

For ease of reference, the court will refer to plaintiff's alleged injuries simply as low back, neck, and shoulder pain.

In support of their position, defendants submit a report from David G. Storrs, M.D. regarding his Independent Medical Examination of plaintiff on March 27, 2006. Dr. Storrs' report concludes that plaintiff was suffering from "chronic cervical, thoracic, and lumbar spine pain with primarily subjective complaints" (Def Ex I). Additionally, defendants submit [*3]plaintiff's emergency medical records on the date of the accident which included negative X-rays of her back and left shoulder and ribs, as well as a negative scan of her abdomen (Def Ex K). Defendants also submit the negative MRI report performed on plaintiff's left shoulder by Cindi Shi, M.D. on August 9, 2002, as well as a second MRI performed by Kyung I. Kim, M.D., approximately a month later, which was also negative (Def Ex K). Defendants also argue that plaintiff herself testified that she is able to perform all required household chores, continues to work, and that her only major restriction is her inability to lift heavy objects. Plaintiff also acknowledged that she was involved in a separate subsequent car accident on July 4, 2005. Finally, defendants point out that Dr. Kim's office notes indicate that he released her to return to work on October 22, 2002, but that plaintiff disagreed with his assessment and elected to discontinue treatment with Dr. Kim and seek a second opinion (Def Ex K).

The court finds defendants' submissions do not meet their initial burden of establishing that plaintiff did not suffer a medically determined injury under this category. In this court's view, Dr. Storrs' IME report does not adequately discuss this particular category of serious injury and, further, the IME took place well beyond the expiration of the 180-day period (Lowell v Peters, 3 AD3d 778, 780 [2004]. Thus, the burden has not shifted to plaintiff to lay bare her evidence with respect to this claim.

Parenthetically, the court notes that even if it had deemed defendants' proof sufficient to meet their burden, it would have found plaintiff had satisfied her burden of coming forward with proof in evidentiary form sufficient to raise a triable issue of fact warranting denial of summary judgment. Plaintiff avers that she "[w]as unable to work starting July 15, 2002 and I did not return until November 2002 on a part time basis and with pain" (Plaintiff's Affidavit, ¶ 7), as well as that "[m]y doctor did not release me back to work until October 22, 2002 which is more than 90 days following the onset of my disability" (Plaintiff's Affidavit, ¶ 8). Defendants do not sufficiently dispute that plaintiff was out of work for the three months between July and October, 2002. Although defendants highlight plaintiff's decision to seek a second opinion after Dr. Kim released her to work on a part-time basis, such decision on plaintiff's part does not negate the fact that she was out of work for that three months in the first instance based upon a physician's recommendation.^[FN4] Additionally, plaintiff avers that she has been unable to participate in physical activities, stand for extended periods, sit for extended periods, lift common household objects, shop, perform common household steady employment from July 15, 2002 to the present date (Plaintiff's Affidavit, ¶ 9).

In view of the foregoing, the court finds that defendants' motion for summary judgment dismissing plaintiff's complaint is DENIED. [*4]

The foregoing constitutes an order of the court upon which judgment may be entered according to its terms.

It is so ordered.

Dated: October 10, 2007

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court