The defendants, MTA-Long Island Bus, Metropolitan Suburban Bus Authority and Carlos S. Sagastume, (hereafter MTA) move this Court for an order granting summary judgment, pursuant to CPLR § 3212 and dismissing the Plaintiff, Reginald Chambers'(hereafter Chambers) complaint for failure to show that a serious injury has been suffered, as per Article 51 of the New York State Insurance Law. The Plaintiffs oppose the motion in its entirety.

This action arises from a motor vehicle accident involving a collision between an MTA bus and a car driven by Chambers, but owned by the Plaintiff, Bridgett Burroughs (hereafter Burroughs). Burroughs was not present in the car at the time of the accident. The accident occurred on March 16, 2006 at about 3:15 p.m. at the intersection of Fulton Avenue and Kenorchan Avenue in [*2]Hempstead, New York, County of Nassau. On or about March 23, 2007, the Plaintiffs commenced this action by filing a summons and complaint. Issue was joined by service of the Defendants' verified answer and demands. On or about June 17, 2008, the Plaintiffs served a verified bill of particulars, alleging that Chambers sustained a serious injury.

Initially, this Court must decide whether or not to deny the Defendants' motion as untimely. The Court's Certification Order of January 13, 2009 specified, inter alia, that all motions for summary judgement must be filed within 60 days of filing the Note of Issue. The Note of Issue was filed on April 7, 2009. Sixty days from that date is June 6, 2009, a Saturday. Since, of course, no papers can be filed on a weekend, the next business day when filing would be possible was June 8, 2009. (See General Construction Law § 25-a(1)). The Defendants' motion was served by mail on the plaintiffs on June 5, 2009, at which time a fee exemption motion was served upon the County Clerk's office. A printout from the County Clerk's office indicates that the motion was logged in on June 9, 2009. At the very most, therefore, the motion may have been filed one day past the 60 day limit. Conversely, the motion could be deemed filed when the fee exemption notice was served on the County Clerk, June 5, 2009, the same day the motion was served.

Regardless, it is within this Court's discretion to disregard a self-imposed deadline to file a motion for summary judgment when that deadline is set at less than 120 days from filing the note of issue, even absent a showing of "good cause." The instant motion was filed well within the 120 day period, in fact, it was logged in just a day beyond what would have been the last date for filing as set by the Court. Therefore, the Court will deem the Defendants' motion for summary judgment to be timely and will decide it on the merits.

It is noted at the outset that the Defendant is not required to disprove any category of serious injury which has not been pled by the Plaintiff (Melino v Lauster, 82 NY2d 828 [1993]). In the instant case, Chambers' Bill of Particulars claims that he has sustained serious injury in the form of a permanent consequential limitation, a significant disfigurement, a permanent loss of use, a significant limitation of use of a body function and "a substantial alteration in her (sic) daily activities for 90 out of the first 180 days immediately following the occurrence." Whether the Plaintiff can demonstrate the existence of a compensable serious injury depends upon the quality, quantity and credibility of admissible evidence (Manrique v Warshaw Woolen Associates, Inc, 297 AD2d 519 [1st Dept, 2002]).

On a motion for summary judgment the movant must establish his or her cause of action or defense sufficient to warrant a court directing judgment in its favor as a matter of law ( Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986], Rebecchi v Whitmore, 172 AD2d 600 [2nd Dept. 1991]). "The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact" (Frank Corp. v. Federal Ins. Co., supra, at 967; GTF Mktg. v. Colonial Aluminum Sales, 66 NY2d 965 [1985]; Rebecchi v. Whitmore, supra at 601). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see, Frank Corp. v. Federal Ins. Co., supra).

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist (Barr v. County of Albany, 50 NY2d 247 [1980]; Daliendo v. Johnson, 147 AD2d 312, 317 [2nd Dept. 1987]).

In a personal injury action, a summary judgment motion seeking to dismiss requires that a [*3]defendant establish a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) (Gaddy v. Eyler, 79 NY2d 955 [1992]). Upon such a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence in admissible form to demonstrate the existence of a question of fact on the issue (Gaddy v. Eyler, supra). The court must then decide whether the plaintiff has established a prima facie case of sustaining serious injury (Licari v. Elliot, 57 NY2d 230 [1983]).

In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians (see Pagano v Kingsbury, 182 AD2d 268 [(2nd Dept. 1992]). However, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment (Grasso v Angerami, 79 NY2d 813 [1991]).

Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. The Court of Appeals in Toure v Avis Rent-a-Car Systems, 98 NY2d 345 (2002), stated that a plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. See Gonzalez v Vasquez, 301 AD2d 438 [1st Dept. 2003]).

Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury (Pommels v Perez, 4 NY3d 566 [2005]).

Insurance Law §5102 (d) defines serious injury to mean a personal injury which results in: (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically 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."

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition (Gaddy v Eyler, 79 NY2d 955 [1992]; Licari v Elliot, 67 NY2d 230 [1982]). A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute (Licari v Elliot, supra). A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion, in order to prove the extent or degree of the physical limitation (See Toure v Avis, supra). In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided: (1) the evaluation has an [*4]objective basis and (2) the evaluation compares the plaintiff's limitation to the normal function, purpose and use of the affected body organ, member, function or system (see id.).

Finally, to prevail under the "medically 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" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" (Insurance Law § 5102[d]) "which would have caused the alleged limitations on the plaintiff's daily activities" (Monk v Dupuis, 287 AD2d 187, 191 [3rd Dept. 2001]). A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment" (Licari v Elliott, supra at 236). Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies (Gomez v Ford Motor Credit Co., 10 Misc 3d 900 [Sup. Ct., NY Cty., 2005]).

With these guidelines in mind, the Court will turn to the merits of the Defendant's motion. In support of their motion, the Defendants submit the pleadings, the verified bill of particulars, the deposition of Chambers, the sworn report of Francisco Santiago, M.D., board certified in physical medicine and rehabilitation, who examined Chambers on June 7, 2006, the sworn report of Salvatore Corso, M.D., an independent medical examiner, who saw Chambers on November 11, 2008, the sworn report of Edward M. Weiland, a board certified psychiatrist and neurologist who examined Chambers on November 11, 2008 and the sworn report of A. Robert Tantleff, M.D. who on May 13, 2009 reviewed the radiology report of the MRI of Chamber's lumbar spine.

Based on this evidence, the Court finds that the Defendant has established a prima facie case that Chambers has not sustained serious injury within the meaning of Insurance Law § 5102(d), regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system or medically 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. The report of Dr. Santiago cites the only one deviation from the norm: Lumbosacral range of motion shows flexion at 85/90, a relatively minor deviation. Dr. Corso, who like Dr. Santiago does not reveal how he measured Chamber's range of motion, detected no deviation from normal. Dr. Weiland, who made all measurements using a goniometer, notes no deviations from the norm. All three doctors conclude that Chambers has no permanent or residual disability as a result of the instant motor vehicle accident. Dr. Tantleff's review of the lumbar spine MRI concludes that the abnormalities in Chambers' lumbar spine are the result of longstanding chronic degenerative disease. Further, he states that there is no indication of recent trauma.

Since the Defendants have established a prima facie case that Chambers has not sustained physical injury under the criteria just outlined, it then becomes the Plaintiff's burden to submit sufficient evidence to raise a triable question of fact. In support of his opposition to the Defendants' motion, he has submitted unaffirmed medical records from Mercy Medical Center, where he was seen immediately after the accident; a report, which is affirmed, but not notarized, dated March 17, 2006 from Dr. Wayne P. Wagner, a chiropractor with Mendoza Chiropractic Office, P.C.; sworn reports from David Khanan, M.D., Ph.D., a specialist in physical medicine and rehabilitation, dated [*5]March 16, April 20, and May 27, 2006, together with medical records from Dr. Khanan of Hempstead Total Medical, dated March 24, 2009; MRI reports of Chambers' lumbar and cervical spines, dated May 6, 2009 and performed at Doshi Diagnostics; and a July 25, 2009 sworn report of James M. Liguori, D.O., a board certified neurologist.

The Court in deciding this motion can not consider the unaffirmed medical reports from Mercy Hospital nor the sworn, but not notarized report of Dr. Wagner. Chambers medical evidence must be presented in the form of sworn affirmations or affidavits, specifically stated to be provided under penalties of perjury pursuant to CPLR § 2106. Mercy's records are unaffirmed. Dr. Wagner's report requires notarization, as chiropractors are not included in the class for which only an affirmation is required. Dr. Khanan's reports are in admissible form and can be considered by the Court. However, the medical history dated March 23, 2006 submitted from Hempstead Total Medical is unaffirmed and can not be considered. Dr. Liguori's report is affirmed and can be taken into account. The MRI narrative reports from Doshi Diagnostics, although unaffirmed, can be considered, because the Defendants relied on them in making their motion.

After considering the admissible evidence submitted by the Plaintiff Chambers, the Court finds that he has not met his burden. Although the reports by Dr. Khanan note bulging or herniated discs, these reports are more than three years old. Moreover, he does not address the issue of Chambers' prior motorcycle accident nor the degenerative nature of the Plaintiff's spinal problems. Dr Liguori, also mentions bulging and herniated discs. It should be noted, however, that evidence of the existence of herniations do not, alone, constitute proof of a serious injury. Kearse v New York City Transit Authority, 16 AD3d 45 (2nd Dept., 2005). Although Dr. Ligouri notes significant limitations in Chambers' range of motion tests and concludes that Chambers' injuries are directly related to the motor vehicle accident, this is not sufficient. There is a significant, unexplained gap or cessation in treatment from July 2006 to July 2009 which interrupts the chain of causation between the accident and the claimed injury.Pommels v Perez, 4 NY3d 566 (2005). Further, Chambers' submissions do not refute the Defendants' evidence of a pre-existing condition. Dr. Khanan, who also finds a correlation between the instant accident and Chambers injuries, makes no note of Chambers' prior motorcycle accident and therefore does not address whether or not the current problems were a result of that incident. Chambers has failed to come forth with evidence countering the Defendants' proof of lack of causation. Pommels v Perez, supra.

The Plaintiff has also failed to produce proof that he sustained medically determined injury or impairment of a non-permanent nature which prevented him from performing substantially all of the material acts which constitute his 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.

Additionally, the Plaintiff's claim of property damage is dismissed. Burroughs has failed to present any evidence which could reasonably establish this claim.

Based upon the foregoing, the Defendants' motion forsummary judgment dismissing the complaint is GRANTED.

This decision constitutes the decision and order of the court.

DATED:Mineola, New York

February 2, 2010 [*6]

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Hon. Randy Sue Marber, J.S.C.