Co-Defendant-Jos� Irizarry, along with Co-Defendant-Thomas C. Joseph, moves and cross-moves for summary judgment and dismissal of Plaintiff's Complaint in this serious injury threshold motor vehicle accident ["MVA"].

After review of the motion papers, this Court hereby finds the following with respect to Defendant's motion and Co-Defendant's cross-motion for summary judgment:

-as to Plaintiff's left shoulder, summary judgment is DENIED;

-as to Plaintiff's neck, summary judgment is GRANTED.

Did Plaintiff suffer "serious injuries" pursuant to NY Insurance Law � 5102 (d)?^[FN1] This Court finds that she did not with respect to her neck, but that a material issue of fact exists as to whether she sustained serious injuries to her left shoulder.

I.FACTUAL BACKGROUND On April 26, 2004, Plaintiff was an unrestrained front-seat passenger in Co-Defendant Thomas Joseph's car when Mr. Joseph's car collided with Co-Defendant Irizarry's, causing injuries to Plaintiff.^[FN2] Plaintiff went to Jacobi Medical Center via FDNY ambulance that same day. On or about August 12, 2004, Plaintiff's counsel filed the Summons and Verified Complaint at Bronx Supreme Court. [*2]Primarily complaining of neck and left shoulder pains as a result of the MVA, Plaintiff also filed her Verified Bill of Particulars dated March 1, 2005. She claimed the following categorical serious injuries [see � 7 of Bill of Particulars in Def.'s Aff. at Ex. E; see also Pl.'s Opp. at � 65]:

[1]permanent loss of use of a body organ, member, function, or system; [2]significant limitation of use of a bodily function or system; [3]causal relationship; and [4]90/180-day rule regarding performance of daily activities

On February 1, 2007, Plaintiff testified at her Examination Before Trial ["EBT"]. During that EBT, she testified that she was doing temp work at the time of the MVA and that she was involved in a pedestrian accident sometime in 1993, injuring her neck and back.Below is a list of the relevant healthcare professionals Plaintiff sought treatment relating to the MVA:

Healthcare professionals from Plaintiff's side:^[FN3]

-April 26, 2004 to June 16, 2004: Jacobi Medical Center/North Central Bronx Hospital handwrittennotes from ER and follow-up treatments from an orthopedist [Pl.'s Opp. at Exs. A & B] -May 27, 2004 to September 27, 2004: ActiveCare Physical Therapy for range-of-motion ["ROM"]exams [Pl.'s Opp. at Ex. C]

Healthcare professionals from Plaintiff's side [cont.]:

-June 1, 2004: unaffirmed left shoulder MRI by neurologist Lennert Belok, M.D. of GramercyMRI & Diagnostic Radiology, P.C. [Pl.'s Opp. at Ex. D] -June 2, 2004: unaffirmed cervical spine MRI by David R. Payne, M.D., of Gramercy MRI &Diagnostic Radiology, P.C. [Pl.'s Opp. at Ex. E] -June 8, 2004 to August 10, 2004: left shoulder and neck pain evaluations by orthopedist David T.Neuman, M.D., in which he reviewed Plaintiff's MRIs [Pl.'s Opp. at Ex. F & � 17]-November 8, 2005 to July 19, 2006: physical therapy handwritten notes from TherapeuticInterventions [Pl.'s Opp. at Ex. H & � 24] -March 17, 2009 & August 11, 2009: left shoulder follow-up evaluations by orthopedist Dr.Neuman [Pl.'s Opp. at Ex. F & p. 6 of Ex. I] Healthcare professionals from Defendant's side:-March 23, 2007: neurological Independent Medical Exam ["IME"] by Rene Elkin, M.D. [Def.'sAff. at Ex. H] -April 3, 2007: orthopedic IME by Marvin Winell, M.D., in which he reviewed the MRI & x-ray ofthe lumbosacral spine June 24, 2004 and ROM testing [Def.'s Aff. at Ex. G] -April 9, 2009: affirmed report of left shoulder MRI [from June 2, 2004] from radiologist Alan B.Greenfield, M.D. [Def.'s Aff. at Ex. I] [*3]

Plaintiff Stacy McFarland lives in the Bronx and is right-handed. She is a freelance performing artist and also trains and teaches other performers.

II. SATISFYING THE BURDEN "AS A MATTER OF LAW" Because a motion for summary judgment has an extremely high burden ["as a matter of law"], it is a drastic remedy for any movant to use. Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 (NY App Ct 1978). As such, the burden is on the movant to produce evidence as would be required in a trial. Oxford Paper Co. v. S.M. Liquidation Co., Inc., 45 Misc 2d 612, 614 (Sup Ct, NY County 1965). Moreover, in a motion for summary judgment, the movant has a greater burden to produce evidentiary facts than the non-movant. Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1068 (NY App Ct 1979). Once the defendant established the initial burden of showing that the plaintiff did not suffer serious injuries, the burden shifts to the plaintiff to show that a triable issue of genuine fact exists by submitting admissible evidence. Shinn v. Catanzaro, 1 AD3d 195, 197 (Sup Ct, App Div, 1st Dept 2003). Moreover, a defendant's doctor's failure to list the objective tests upon which his conclusion is based warrants denial of the defendant's motion on the grounds that said defendant has not established prima facie entitlement to summary judgment. Ortiz v. Ash Leasing Inc., 2008 WL 4790631 at 9 (Sup Ct, Bronx County 2008).

Here, Defendant is the movant and therefore has the legal duty to provide range of motion reports, along with objective, admissible medical evidence of any significant physical limitations. After all, a motion for summary judgment is tantamount to having a formal trial.

III.SERIOUS INJURY: A THRESHOLD ISSUE

A.Movant-Defendant has the burden to show that Plaintiff sustained no serious injury

Deciding what is a "serious injury" can be particularly vexing. Pommells, 4 NY3d at 571. A defendant can refer to the plaintiff's own deposition testimony to establish that, by the plaintiff's own account, plaintiff's injuries were not serious within the meaning of the statute and case law. Arjona v. Calcano, 7 AD3d 279, 280 (Sup Ct, App Div, 1st Dept 2004). Furthermore, objective, admissible medical proof of a plaintiff's injury is required in order to meet the "serious injury" threshold. Toure v. Avis Rent A Car Systems, Inc., 98 NY2d 345, 350-51 (NY App Ct 2002). The plaintiff, on the other hand, must show through admissible medical evidence, that the injuries are causally connected to the accident. Ortiz v. Ash Leasing, Inc., 2008 WL 4790631 at 9 (Sup Ct, Bronx County 2008), quoting Pommells, 4 NY3d at 572, 580. Any injury that does not fall within the "serious injury" definition is minor, and a jury trial is not permitted under the No-Fault scheme. Licari v. Elliott, 57 NY2d 230, 235 (NY App Ct 1985). B.Admissible proof of Plaintiff's "significant and permanent limitations" In Licari, the NY Appeals Court pointed out that the word "significant" as used in the statute pertaining to "limitation of use of a body function or system" should be construed to mean something more than a minor limitation of use. Licari, 57 NY2d at 236. The Licari Court also underscored that the plaintiff should offer objective evidence as to the extent of the limitation of [*4]the movement. Id. at 239. Moreover, in order to prove the extent or degree of physical limitation, an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a serious injury claim. Toure, 98 NY2d at 350.

i.Contrary to Defendant's arguments, Plaintiff's orthopedist, Dr. Neuman,provided admissible, objective medical testimony regarding her left shoulder,thereby raising material issues of fact According to Defendant, Dr. Neuman's report and corresponding affirmation should not be given any weight. See Def.'s Reply at �� 4-7. This Court, however, disagrees with Defendant because Dr. Neuman examined her left shoulder on June 8, 2004, July 20, 2004, and March 17, 2009, and found significantly limited ROM. See Pl.'s Opp. at Exs. F, I. More telling is

Dr. Neuman's ROM finding on March 17, 2009, where flexion and abduction were 100 degrees/150 degrees normal. Id. at Ex. I, p. 7; see also Pl.'s Opp. at � 26.^[FN4] In contrast, Defendant's orthopedist, Dr. Winell, reported that ROM for the left shoulder was normal.^[FN5] See Def.'s Aff. at Ex. G. This Court therefore finds that the conflicting medical reports, coupled with Plaintiff's testimony at her EBT,^[FN6] raise material questions of fact. Defendant also argues that Dr. Neuman did not review the MRI film of Plaintiff's left shoulder taken by Dr. Belok. See Def.'s Reply at � 10. As such, Defendant opines that Plaintiff offered unaffirmed medical reports that should therefore not be considered by this Court. Id. at � 8. Defendant, however, makes reference to these very same unaffirmed MRI and medical reports. Because reference was made to the results of the unsworn reports in the affirmation of the expert submitted in opposition to the motion, they were properly before the Court. Pommells v. Perez,

4 NY3d 566, 571 (NY App Ct 2005); see also Uddin v. Cooper, 32 AD3d 270 (1st Dept 2006).

Accordingly, Dr. Neuman did not have to review the MRI film because Dr. Greenfield already did so; furthermore, Dr. Neuman conducted his own thorough evaluation of Plaintiff's injuries. Id. Unlike the Mullings Court, Plaintiff's doctor, Dr. Neuman, gave a thorough account of her left shoulder injuries.^[FN7] In no way was Dr. Neuman's report conclusory. In fact, his findings [*5]as the treating doctor were probative on the issue of seriousness of the left shoulder injuries.

ii.Plaintiff's neck injuries are not "serious" Plaintiff did not suffer serious injuries to her neck as a result of her April 26, 2004 MVA because not only did Defendant provide this Court with sufficient, admissible medical evidence that Plaintiff's neck was not seriously injured, but Plaintiff did not counter Defendant's evidence,^[FN8] as Plaintiff's counsel failed to provide objective ROM findings.

For instance, Plaintiff's orthopedist, Dr. Neuman, found that her cervical spine showed a 15 degree limitation in both extension and flexion testing. See Pl.'s Opp. at Ex. I, p. 7. The normal ranges, however, were omitted. Without such parameters, the Court would only have a numerical percentage with no reference point as to what constitutes normal, as opposed to abnormal ROM. As such, Plaintiff failed to prove the degree of physical limitation as echoed by the Toure Court which is indicative of significant limitations.

It can therefore be concluded that Defendant has met its prima facie burden that Plaintiff did not suffer serious injuries to her neck in the April 26, 2004 MVA because she did not rebut this evidence with her own admissible, objective reports which would otherwise defeat Defendant's motion. C.Sufficiently explaining the gap in treatment Objective, admissible medical evidence from the plaintiff can be clouded by interrupting factors such as a gap in treatment and/or a pre-existing condition sustained from a prior MVA. Pommells, 4 NY3d at 574. While a cessation of treatment is not dispositive, the plaintiff must offer some reasonable explanation for a gap in treatment. Id. Here, Plaintiff argues that her orthopedist, Dr. Neuman, treated her over a five-year period, see Pl.'s Opp. at � 36, although over four years passed from the last time Plaintiff was treated by Dr. Neuman to the time Plaintiff sought treatment from Dr. Neuman again on March 17, 2009. See Pl.'s Opp. at Ex. I, p. 1. Plaintiff was advised of two courses of treatment for the

left shoulder: conservative pain management or surgery. Id. at p. 6. Plaintiff's apparent reluctance to elect the surgery option therefore left physical therapy as her only course of treatment. Id. at p. 7. Accordingly, Dr. Neuman advised that she follow a home therapy course of treatment. See Pl.'s Opp. at Ex. F, p. 3. This Court is satisfied that Plaintiff gave a reasonable explanation of the four-year gap. As such, Dr. Neuman's 2009 evaluations are to be given full weight as Plaintiff's treating doctor.

D.Plaintiff failed to meet its 90/180-day rule requirement by not offering objective,admissible proof or testimony According to Licari, the words "substantially all" should be construed to mean that the [*6]person has been curtailed from performing his/her usual activities to a great extent rather than some slight curtailment. Licari, 57 NY2d at 236. Here, Plaintiff testified that she was not working at any temp assignments at the time of the MVA, although she did have immediate, future engagements as an entertainer, albeit sporadically. See McFarland Tr. at p. 15, lines 24-25; p. 16, lines 4-25; p. 21, lines 10-22; p. 24, lines 15-21.Although Plaintiff was injured, she testified that she was able to return to some of her normal work activities. As such, this Court agrees with Defendant that Plaintiff did not have any extensive curtailment that would otherwise show prima facie proof that she suffered any serious injuries under the 90/180-day rule, since she continued to work and also failed to offer admissible medical reports that she could not return to work. See Def.'s Reply at � 13; see also McFarland Tr. at p. 104, lines 2-9 at Ex. F of Def.'s Aff. IV.CONCLUSION Defendant's IMEs were objective, admissible, and probative of its prima facie case that Plaintiff did not suffer serious injuries as to her neck. Plaintiff, in turn, failed to proffer admissible healthcare evidence to raise material issues that could be introduced at trial. In contrast, Plaintiff's submission of Dr. Neuman's affirmation raises material issues of fact regarding Plaintiff's left shoulder injuries. The gap in treatment was also plausibly explained. WHEREFORE this Court hereby GRANTS Defendant's motion for summary judgment and cross-motion as a matter of law, with respect to Plaintiff's neck. This Court also hereby DENIES Defendant's motion for summary judgment and cross-motion as to Plaintiff's left shoulder. Plaintiff's Complaint will not be dismissed. This constitutes the Decision and Order of this Court.

Dated:January 5, 2010___________________________________

Bronx, NYHon. Fernando Tapia, J.C.C.