By notice of motion filed on June 24, 2010, defendant Jian Lin ("defendant") moves under motion sequence three, for an order dismissing plaintiff's complaint, pursuant to CPLR § 3212, on the basis that plaintiff's injuries do not satisfy the "serious injury" requirement of New York Insurance Law § 5102(d). Plaintiff opposes defendant's [*2]motion. Co-defendant Julio Arellano did not appear or oppose the defendant's motion.

On September 22, 2008, plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. By verified answer, dated December 5, 2008, defendant joined issue. On April 29, 2010, a note of issue was filed.

Plaintiff's action is for damages due to personal injuries sustained as a result of a motor vehicle accident. Plaintiff's complaint and bill of particulars alleges that on September 27, 2005, she was a passenger in a 1997 Lincoln Town Car owned and operated by Julio Arellano when said vehicle collided with a 2000 Acura owned and operated by Jian Lin at the intersection of 58th Street and 6th Avenue in the County of Kings. Plaintiff alleges to have sustained severe physical injury as a result of the defendant's negligent operation of their vehicles.

Defendant's motion papers consist of a notice of motion, an attorney's affirmation and seven exhibits, labeled A through G. Exhibit A is an "e-law" document containing details of the instant case. Exhibit B is the plaintiff's summons and verified complaint. Exhibit C is the defendant Jian Lin's verified answer. Exhibit D is the plaintiff's verified bill of particulars. Exhibit E is the affirmed report of neurologist Ravi Tikoo, M.D. Exhibit F is the affirmed report of orthopedic surgeon Robert J. Orlando, M.D., F.A.C.S. Exhibit G is the affirmed report of radiologist Richard A. Heiden, M.D.

Plaintiff in opposition, has submitted an attorney's affirmation, an affidavit of merit and five exhibits labeled A through E. Exhibit A includes medical records from Lutheran Medical Center. Exhibit B includes medical records from Seaview Medical & Rehabilitation. Exhibit C includes medical records from Al Correa, Neurologist, P.C. Exhibit D includes medical records from Complete Care, including the affirmation of Aric Hausknecht, M.D., neurologist. Exhibit E includes medical records from Doshi Diagnostic.

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 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, 69 NY2d at 324).

Insurance Law § 5104(a) provides that, "when an insured injures someone in a [*3]motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met," (Raffellini v. State Farm Mut. Auto. Ins. Co., Inc., 9 NY3d 196, 205 [2007]).

Insurance Law § 5102(d) defines "serious injury" as: "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system ["permanent loss"]; permanent consequential limitation of use of a body organ or member ["permanent consequential limitation"]; significant limitation of use of a body function or system ["significant limitation"]; 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 ["90/180-day"]."

Plaintiff provided the defendant with a verified bill of particulars dated February 10, 2009. In paragraph fourteen, plaintiff alleges that her injuries are of a serious nature as defined by the four elements comprising Insurance Law §5102(d); permanent loss, permanent consequential limitation, and significant limitation under the 90/180-day category. In paragraph fifteen, plaintiff alleges, among other things, that she was confined to bed for approximately one month and incapacitated from employment for approximately six months after the accident.

In support of the instant motion, defendant submitted the affirmed reports of Drs. Ravi Tikko, a neurologist, Robert J. Orlandi, an orthopedic surgeon, and Richard A. Heiden, a radiologist.

Dr. Tikko examined the plaintiff on March 17, 2010 and concluded that plaintiff had an "essentially normal" neurological exam. Dr. Tikoo offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.

Dr. Orlandi examined the plaintiff on March 15, 2010 and concluded that plaintiff had full and painless ranges of motion. Dr. Orlandi offered the opinion that plaintiff's prognosis for the date of the accident, September 27, 2005, was excellent and that no permanent residuals or musculoskeletal disability were detected. Dr. Orlandi offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.

On April 16, 2010, Dr. Heiden reviewed plaintiffs radiological films from a cervical spine MRI examination conducted on October 26, 2005 and a lumbar spine MRI examination conducted on November 8, 2005. Dr. Heiden concluded that plaintiff exhibited bulges that were degenerative in nature and not related to the accident but offered no specific opinion as to plaintiff's condition during the relevant 90/180-day period.

The affirmed reports of Drs. Tikoo, Orlandi and Heiden are silent as to the plaintiff's condition during the relevant 90/180-day time period. Therefore, defendant has not met its burden because the affirmed medical reports submitted by defendant's [*4]physicians fail to specifically discuss the 90/180-day category of serious injury clearly articulated in the plaintiff's verified bill of particulars (Scinto v. Hoyt, 57 AD3d 646, 647 [2nd Dept., 2008]).

Since the defendant failed to meet the prima facie burden, we need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact. (Marmer v. If USA Express, Inc., 73 AD3d 868, 869 [2nd Dept., 2010]).

For the foregoing reasons, the defendant's motion to dismiss the complaint pursuant to CPLR § 3212 and Insurance Law § 5102(d) is denied.

Enter:

J.S.C.

Enter Forthwith:____________________________

J.S.C.