By notice of motion filed on January 11, 2011, under motion sequence two, defendant Josina Reaves moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Plaintiff did not appear at oral argument or submit written opposition to the motion.

On March 22, 2010, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by defendant's verified answer dated April 29, 2010. On November 29, 2010, a note of issue was filed.

Plaintiff's action is to recover damages for personal injuries sustained as a result of a motor vehicle accident. Plaintiff has alleged in the complaint and bill of particulars that on January 23, 2009, at approximately 7:50 a.m., the defendant negligently drove through [*2]a stop sign into the intersection of 73rd Street and Colonial Road in Kings County, New York, and collided with plaintiff's vehicle causing serious injury to the plaintiff.

Defendant's motion papers consist of an attorney's affirmation and five annexed exhibits, labeled A through E. Exhibit A is a copy of the instant summons and verified complaint dated March 22, 2010. Exhibit B is a copy of defendant's verified answer dated April 29, 2010. Exhibit C is a copy plaintiff's verified bill of particulars dated May 10, 2010. Exhibit D is a copy of the transcript of plaintiff's deposition conducted on October 21, 2010. Exhibit E is a copy of the expert witness disclosure of Dr. Alan J. Zimmerman, prepared pursuant to CPLR 3101(d).

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, 508 N.Y.S.2d 923 [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, 760 N.Y.S.2d 397 [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 1062, 601 N.Y.S.2d 463 [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).

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 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."

"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 that no objective medical findings support the plaintiff's claim." (See Grossman v. Wright, 268 AD2d 79, 83, 707 N.Y.S.2d 233, 237 [2nd Dept., 2000]). "With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective [*3]evidence of the injury." (Id. at 84.)

In support of the instant motion, defendant submitted the affirmed report of Dr. Alan J. Zimmerman, an orthopedic surgeon. Dr. Zimmerman examined the plaintiff on November 16, 2010, conducted range of motion testing of the plaintiff's knees and ankles, compared his finding to what was normal and concluded that plaintiff demonstrated normal range of motion. Dr. Zimmerman found no evidence of impingement to the right knee and diagnosed plaintiff with resolved right knee strain and right foot sprain. He further found that plaintiff suffers from plantar fascitis and degenerative chondromalacia unrelated to the alleged accident. Dr. Zimmerman concluded that plaintiff had no objective medical findings to support the plaintiff's claim of serious injury.

Dr. Zimmerman's examination was conducted over twenty months after the accident of January 23, 2009 and was silent on the plaintiff's medical condition during the six month period following the accident. However, plaintiff's verified bill of particulars admits that he was confined to his bed for two days, to his home for one month and that he was unable to return to work for five days due to the accident.

Plaintiff provided the defendant with a verified bill of particulars dated May 10, 2010. In paragraph eight, plaintiff alleges, among other things, that he was confined to bed for approximately two days, to his home intermittently for one month and that he was incapacitated from employment for approximately five days after the accident.

The defendant may rely on plaintiff's admissions in his verified bill of particulars to establish that the plaintiff did not meet the 90/180 category of serious injury of Insurance Law § 5102(d) (see Bover v. Jian Cheng K. Li, 27 Misc 3d 143A, 2010 WL 2431841 (NY Sup. App. Term 2010). Where a plaintiff made admissions in a bill of particulars of having missed no more than three or four days of work and having been confined to home and incapacitated from household duties for only one week, a defendant may use such admissions to make the necessary showing that the plaintiff did not sustain a medically determined injury pursuant to Insurance Law § 5102(d) (Id.).

The Appellate Division First Department came to a similar conclusion in the case of Brantley v. New York City Transit Authority, 48 AD3d 313, 852 N.Y.S.2d 81 [1st Dept., 2008]. In the Brantley case the Appellate court found that the defendants met their initial burden under the 90/180 category by submitting plaintiff's deposition testimony and bill of particulars which indicated that the plaintiff had been confined to bed for five days and missed five days of work following the accident.

Accordingly, defendant has made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and has shifted the burden to the plaintiff to come forward with evidence to demonstrate a triable issue of fact. However, the plaintiff did not oppose defendant's motion and therefore has not raised a triable issue of fact.

Defendant's motion to dismiss the complaint pursuant to CPLR 3212 and Insurance Law [*4]§ 5102(d) is granted.

The foregoing constitutes the decision and order of this court.

Enter___________________________________________x

J.S.C.

Enter forthwith___________________________________________x

J.S.C.