By notice of motion filed on November 12, 2009, under sequence number three, defendant Pierre Hunt (Hunt) moves pursuant to CPLR §3212 for an order dismissing the complaint on the basis that plaintiff Farah Ulysee (Ulysee) did not sustain a serious injury as contemplated by Insurance Law §5102(d). Defendant Marcel Ceres (Ceres) moves, under sequence number four, for the exact same relief. Ulysee opposes both motions.

On March 8, 2007, Ulysee commenced this action for personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Hunt joined issue by his verified answer with cross-claims, dated March 17, 2008. Ceres joined issue by his verified answer, dated June 15, 2007. [*2]

Ulysee's complaint and bill of particulars allege the following salient facts. On April 7, 2005 at approximately 7:00 p.m., she was a passenger in a 1996 Land Rover Suburban owned and driven by Hunt. On that time and date, Hunt drove her suburban in the vicinity of Empire Boulevard and Troy Avenue in Brooklyn, New York where she came into contact with a 1992 Toyota owned and driven by Ceres. The collision was caused by the negligence driving of Hunt and Ceres and resulted in serious physical injury to Ulysee.

Hunt's motion papers consist of a memorandum of law, an affirmation of his counsel and eight annexed exhibits labeled A though H. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is Hunt's answer with cross-claim and various disclosure demands. Exhibit C is Ulysee's verified bill of particulars. Exhibit D is Justice Ruchelsman's order dated June 24, 2009 which, among other things, vacated the note of issue in the instant action. Exhibit E is the affirmed, narrative report of Dr. Lawrence E. Cutler, a gynecologist, of his examination of Ulysee on May 22, 2009. Exhibit F is the affirmed, narrative report by Dr. Daniel J. Feuer, a radiologist, dated January 6, 2009, of his examination of Ulysee. Exhibit G is the affirmed, narrative report by Dr. Eduardo V. Alvarez, an orthopedic surgeon, of his examination of Ulysee on January 12, 2009. Exhibit H is the certified but unsigned transcript of Ulysee's testimony at a deposition conducted on October 20, 2008.

Ceres' motion papers consist of an affirmation of his counsel and three annexed exhibits labeled A though C. Exhibit A is a copy of the instant summons and verified complaint. Exhibit B is Ceres verified answer. Exhibit C is Ulysee's verified bill of particulars.

Ulysee opposed both summary judgment motions with an affirmation of her counsel and several annexed exhibits. The first annexed exhibit is a copy of the police accident report (MV-104) of the subject accident. The second is Ulysee's verified bill of particulars. The third is Ulysee's affidavit. The fourth and fifth are affirmed reports of Dr. Nathaniel Shafer dated January 20, 2007 and February 17, 2010, respectively. The sixth exhibit is an excerpt of Ulysee's deposition. The seventh is a memorandum of law.

Hunt and Ceres replied to Ulysee's opposition papers with affirmations of their respective counsels.

CPLR § 3212(b) provides in pertinent as follows: Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.

A motion made pursuant to CPLR § 3212 would require the annexing of pleadings [*3]under section 3212(b). "The pleadings" means "a complete set of the pleadings" (Wider v. Heller, 24 AD3d 433 [2nd Dept., 2006]) or "all the pleadings" (Welton v. Drobniki, 298 AD2d 757 [3rd Dept. 2002]).

The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Matsyuk v. Konkalipos, 35 AD3d 675 [2nd Dept., 2006]; Wider v. Heller, 24 AD3d 433 [2nd Dept., 2006]).

Hunt's motion papers did not include a copy of Ceres' answer to the complaint. Although plaintiff did not raise this deficiency in opposition to Hunt's motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, Hunt's motion may be denied on that basis alone (Thompson v. Foreign Cars Center, Inc. et al., 40 AD3d 965 [2nd Dept., 2007]). The denial, however, is without prejudice to renew (Greene v. Wood, 6 AD3d 976 [3rd Dept. 2004]).

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Guiffirda v. Citibank, 100 NY2d 72 [2003]. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 NY2d at 324).

Ulysee provided Ceres with a verified bill of particulars dated April 16, 2008. In paragraph thirteen she alleged injuries to her reproductive system among other medical problems. In paragraph fourteen of the bill of particulars, she alleges that she has suffered a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the April 7, 2005 accident. She alleges in paragraph fifteen that she was confined to bed and home for approximately six months due to her injuries.

In the context of a motion for summary judgment, "a defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law § 5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude[d] that no objective medical findings support the plaintiff's claim" of serious injury (Grossman v. Wright, 268 AD2d 79, 83-84 [2nd Dept., 2000).

Insurance Law § 5104(a) provides that in any action by, or on behalf of, a covered person against another covered person for personal injuries arising out of negligence in the operation of a motor vehicle in New York, there shall be no right of recovery for non-economic loss, i.e., pain and suffering, except in the case of a "serious injury" (Toure v. [*4]Avis Rent a Car Systems, Inc., 98 NY2d 345, 350 [2002]).

In order for defendant Ceres to prevail on its motion for dismissal of the complaint, Ceres must establish a prima facie entitlement to judgment that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (Toure v. Avis Rent A Car Sys., 98 NY2d 345 [2002]).

Ceres, however, submitted no medical affidavits or affirmations of medical experts who examined the plaintiff. Rather, Ceres relied solely on the exhibits annexed to Hunt's motion. Assuming arguendo that the court can or should look at exhibits annexed to Hunt's procedurally defective motion, those exhibits fail to make a prima facie showing that plaintiff did not suffer a serious physical injury. The affirmed medical reports of the three physicians who examined the plaintiff are all based on physical examination that occurred in 2009. The first examination by Dr. Feuer, a neurologist, occurred on January 6, 2009, the second examination by Dr. Alvarez, an orthopedic surgeon, occurred on January 12, 2009, and the third examination by Dr. Cutler, a gynecologist, occurred on May 9, 2009. None of these physicians offered an opinion on plaintiff's condition during the first six months after the accident of April 7, 2005.

Accordingly, Ceres did not address the plaintiff's claim, clearly set forth in her bill of particulars, that she sustained a medically-determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident.

Since Ceres failed to meet their prima facie burden, the court need not consider whether plaintiff's opposition papers were sufficient to raise a triable issue of fact and Ceres motion must also be denied.

For the foregoing reasons defendants Hunt and Ceres' respective motions to dismiss the complaint pursuant to CPLR § 3212 and Insurance Law §5102(d) are denied.

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

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