This is a personal injury action in which plaintiff, HONG GWON KA, seeks to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at approximately 1:00 a.m., on January 19, 2009, on Union Street at or near its intersection with 37th Avenue, Queens County, New York.

Plaintiff claims that at the time of the accident he was [*2]operating his vehicle on Union Street. As he approached the intersection of 37th Avenue he stopped for the red traffic signal. After 40 - 50 seconds the light turned green. As he proceeded through the intersection, his vehicle was struck by the defendant's vehicle which ran the red light at a speed of approximately 30-50 miles per hour.

Plaintiff commenced this action by the filing of a summons and complaint on January 29, 2009. Issue was joined by service of defendants' verified answer dated April 24, 2009. Defendant now moves for an order, pursuant to CPLR 3212(b), granting summary judgment and dismissing plaintiff's complaint on the ground that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.

In support of the motion, the defendant submits an affidavit from counsel, William B. Stock, Esq.; a copy of the pleadings; plaintiff's verified bill of particulars; the affirmed medical report of Dr. Robert Israel, a board certified orthopedist; the affirmed medical report of Dr. Ravi Tikoo, a board certified neurologist; the affirmed medical report of Dr. Audrey Eisenstadt, a board certified radiologist; and a copy of the transcript of the plaintiff's examination before trial taken on April 21, 2011.

In his verified Bill of Particulars dated May 19, 2010, the plaintiff, age 43, states that as a result of the accident he sustained, inter alia, a tear of the rotator cuff of the right shoulder; torn meniscus of the right knee; herniated discs at C2-C3, C3-C4; disc bulges at C4-C5, C5-C6, L1-L2, L2-L3, L3-L4, L4-L5, L5-S1; and arthroscopic surgery of the right shoulder on March 18, 2009. Plaintiff states that all of the injuries are permanent in nature. The bill of particulars also states that as a result of his injuries plaintiff was confined to bed for three months following the accident and confined to his home for seven months post-accident.

The plaintiff claims that as a result of the accident he sustained a permanent loss of use of a body organ, member, function or system; permanent consequential limitation or use of a body organ or member; significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff 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 [*3]following the occurrence of the injury or impairment.

The plaintiff was examined on May 9, 2011, by Dr. Robert Israel, a board certified orthopedic surgeon retained by the defendant. The plaintiff told Dr. Israel that he was involved in a motor vehicle accident in which he injured his neck, lower back, right shoulder and right knee. After being struck, Lee was taken to Flushing Hospital Medical Center emergency room where he received x-rays and was released. The plaintiff told Dr. Israel that he had been employed as an accountant but that he has not returned to work since the accident. At the time of the examination with Dr. Israel the plaintiff presented with complaints of neck pain, lower back pain, and right shoulder pain. Dr. Israel performed quantified and comparative range of motion tests on the plaintiff's cervical spine, thoracic spine, lumbar spine, right shoulder and right knee. He found that the plaintiff had no limitations of range of motion in any of the injured areas. His impression was that plaintiff sustained a resolved sprain of the cervical spine, resolved sprain of the lumbar spine, resolved sprain of the right knee, and status post- arthroscopy of the right shoulder. Dr. Israel states that from an orthopedic point of view, the plaintiff has no disability as a result of the accident in question.

The plaintiff was also examined by Dr. Ravi Tikoo, a board certified neurologist retained by the defendant. The examination took place on May 11, 2011. At that time the plaintiff complained of neck, back and right shoulder pain. He told Dr. Tikoo that he was employed as an accountant and missed 15 months of work. After conducting a neurological examination, it was Dr. Tikoo's diagnosis that the plaintiff had (1) a history of cervical strain and (2) a history of lumbosacral strain; and (3) history of soft tissue injuries to the right shoulder. His conclusion was that the neurological exam was normal and that despite plaintiff's subjective complaints, "there were no objective findings to substantiate these complaints." Dr. Tikoo concluded that plaintiff does not have significant clinical evidence of neuropathy, radiculopathy or disc herniation from the accident. He stated that in his opinion a permanent injury has not been sustained.

Dr. Audrey Eisenstadt, a board certified radiologist, reviewed MRI examinations that were performed within a month of the accident on the plaintiff's lumbar spine, cervical spine, right knee and right shoulder. As to the lumbar spine she found dessication at the L4-L5 intervertebral disc level with bulging seen extending into both neural foramen. She found that the MRI of the right shoulder was normal and she did not observe a tear [*4]in the rotator cuff. As to the cervical spine, Dr. Eisenstadt found bulging at the C3-C4 and C5-C6 disc levels. She did not observe any disc herniations. As to the right knee the radiologist stated that she observed that all ligaments were normal. She did state that she observed a degenerative change in the posterior horn of the medial meniscus. In her conclusion Dr Eisenstadt states that all of the disc bulges she observed as well as the signal to the right meniscus were due to degenerative changes and she did not see any posttraumatic changes which were causally related to the plaintiff's accident of January 19, 2009.

At his examination before trial taken on April 21, 2011, the plaintiff, a certified public accountant, testified that after the accident he left the scene by ambulance and was taken to the emergency room at Flushing Hospital where he told the medical personnel that he injured his neck and right shoulder. It was determined that he did sustain any fractures and he was released from the emergency room the same day. Approximately seven or eight days later he sought treatment for his injuries at Young Chiropractic. He was treated there four or five days a week with massage therapy and physical rehabilitation for pain in his right knee, back, neck and right shoulder. He stopped treatments at Young in May 2009 four months after the accident because his insurance coverage stopped. The chiropractic office referred him for MRI studies and also referred him to an orthopedic surgeon. In March 2009 he underwent arthroscopic surgery to his right shoulder. Between the winter of 2009 and March 2010 he went to a pain clinic called Jonesarm but stopped treatments as they did not accept his insurance. Contrary to the statement in the bill of particulars, plaintiff testified that he was not confined to his bed after the accident and was confined to his house for one week. However, plaintiff testified he could not return to work for three months as a result of the accident. At the time of the deposition he testified that his back, neck and right shoulder were still hurting him. He testified that as a result of his injuries he cannot participate in certain sports and he cannot sit or drive for long periods of time

Defendant's counsel contends that the independent medical reports of Drs. Eisenstadt, Israel and Tikoo as well as the plaintiff's deposition testimony are sufficient to establish, prima facie, that the defendant has not sustained a permanent loss of a body organ, member, function or system; that he has not sustained a permanent consequential limitation of a body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the defendant has demonstrated that the plaintiff did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented the [*5]plaintiff, for not less than 90 days during the immediate one hundred days following the occurrence, from performing substantially all of her usual daily activities.

In opposition to the motion, the plaintiff submits the affirmed medical report of Dr. Harshad Bhatt, plaintiff's orthopedic surgeon dated July 14, 2011, the affirmed medical report of plaintiff's treating physician, Dr. Rosenblatt, dated July 11, 2011 and the affirmed medical report of plaintiff's radiologist, Dr. Khodadadi.

In his affirmed report radiologist, Dr. Ayoob Khodadadi states that he reviewed the MRI studies prepared by Dr. Heiden. In his opinion the MRI of the cervical spine revealed a disc herniation at C2-C3 and a disc bulge at C5-C6. There were also disc bulges in the lumbar spine. The MRI of the right shoulder revealed a tear of the supraspinatus tendon and the MRI of the right knee showed a tear of the anterior horn lateral meniscus.

Dr. Rosenblatt, a physician, board certified in pain management, states in his affirmed report dated July 11, 2011 that he examined the plaintiff initially on January 28, 2009 and re-evaluated him on July 11, 2011. At the time of the initial evaluation the plaintiff had significant limitations of range of motion in his cervical spine, thoracolumbar spine and right knee. Dr. Rosenblatt stated that after the initial evaluation the plaintiff underwent rehabilitation, chiropractic treatment and arthroscopic surgery of the right shoulder, but then ultimately plateaued in benefit. On July 11, 2011, when re-examined by Dr. Rosenblatt the plaintiff continued to have significant limitations of range of motion of the cervical spine, thoracolumbar spine right shoulder and right knee. Dr Rosenblatt states that in his opinion, the plaintiff, "has sustained a permanent marked disability based upon the injuries sustained from the motor vehicle accident of January 19, 2009." He states that the plaintiff's injuries are permanent in nature and causally related to the accident in question.

Plaintiff's counsel, Bobby Walia, Esq., submits in his affirmation that the medical reports submitted in opposition to the motion for summary judgment establish that the plaintiff sustained a tear of the supraspinatus tendon, a torn meniscus and disc herniations and disc bulges which are causally related to his accident of January 2009. Therefore, counsel contends, the plaintiff has raised material questions of fact regarding the issue of serious injury. [*6]

Plaintiff's counsel also contends that the motion for summary judgment must be denied as untimely as the preliminary conference order stated that the motion for summary judgment was due 120 days after the filing of the note of issue and this motion was not filed until July 14, 2011 which was 40 days past the due date. Counsel contends that the defendant has failed to provide the court with any reason for the late filing of the motion (citing Brill v City of New York, 2NY3d 648[2004). Moreover, counsel contends that the defendant failed to establish, prima facie, that the plaintiff did not sustain a serious injury within the meaning of the no-fault statute. Plaintiff's counsel also states that the defendant's examining physicians failed to comment on whether the plaintiff's claim that he was disabled for 90/180 days following the accident was causally related to the accident.

Defendant's attorney sates that the reason her motion was late was because the Note of Issue which was filed by the plaintiff on February 4, 2011 was filed prior to the completion of the plaintiff's IME and prior to the completion of depositions and that the motion was submitted as soon as possible thereafter. Although the defendant's motion was filed beyond the date set for the filing of a summary judgment motion, this court finds that the defendant has provided a reasonable explanation for the delay in filing the motion.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006]). "[A] defendant can establish that [a] 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" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230). Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955).

Where defendant's motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce [*7]evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v. Eyler, 79 NY2d 955; Grossman v. Wright, 268 AD2d 79 [2d Dept 2000]).

The plaintiff's bill of particulars clearly sets forth that the plaintiff was unable to return to work. Both Dr. Tikoo and Dr. Israel both noted that the plaintiff was out of work for over 3 months. However, neither examining physician related their findings to the 90/180 category of serious injury for the period of time immediately following the subject accident. Thus, the defendant's motion papers failed to adequately address the plaintiff's claim, which was set forth in the bill of particulars, that he sustained a medically-determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident (see Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]; Udochi v H & S Car Rental Inc., 76 AD3d 1011 [2d Dept. 2010]; Strilcic v Paroly, 75 AD3d 542 [2d Dept. 2010]; Bright v Moussa, 72 AD3d 859 [2d Dept. 2010]; Encarnacion v Smith, 70 AD3d 628 [2d Dept. 2010]; Negassi v Royle, 65 AD3d 1311 [2d Dept. 2009]; Alvarez v Dematas, 65 AD3d 598 [2d Dept. 209]; Smith v Quicci, 62 AD3d 858 [2d Dept. 2009]).

Thus, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, that plaintiff had not had sustained serious injuries within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]; Reynolds v Wai Sang Leung, 78 AD3d 919 [2d Dept. 2010]).

In any event, this Court finds that the plaintiff raised triable issues of fact by submitting the medical reports of Dr. Rosenblatt attesting to the fact that the plaintiff had significant limitations in range of motion both contemporaneous to the accident and in a more recent examination, and concluding that the plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident (see Ortiz v. Zorbas, 62 AD3d 770 [2d Dept. 2009]; Azor v Torado,59 AD3d 367 [2d Dept. 2009]). The plaintiff also raised a triable issue of fact as to whether he sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the [*8]subject accident (see Khavosov v Castillo, 2011 NY Slip Op 1442 [2d Dept. 2011]; Mahmood v Vicks, 2011 NY Slip Op 653 [2d Dept. 2011]; Compass v GAE Transp., Inc., 2010 NY Slip Op 9881 [2d Dept. 2010]; Evans v Pitt, 77 AD3d 611 [2d Dept. 2010]; Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 743 [2d Dept. 2010]).

Although the defendant's radiologist opined that the disc bulges were caused by degeneration, the Second Department has recently held that even if the plaintiff's doctor does not specifically address the findings in the reports submitted by the defendants that the abnormalities in the tested areas were degenerative, rather than traumatic, the findings of the plaintiff's doctor that plaintiff's injuries were indeed traumatic and were causally related to the collision is sufficient as it implicitly addressed the defendants' contentions that the injuries were degenerative (see Fraser-Baptiste v New York City Transit Authority, 81 AD3d 878{2d Dept. 2011]; Harris v Boudart, 70 AD3d 643 [2d Dept. 2010]).

In addition, Dr. Rosenblatt adequately explained the gap in plaintiff's treatment by stating that he had reached the point of maximum medical improvement (see Gaviria v. Alvardo,65 AD3d 567 [2d Dept. 2009]; Bonilla v Tortori,62 AD3d 637 [2d Dept. 2009]).

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that the defendant's motion for summary judgment is denied.

Dated: September 26, 2011

Long Island City, NY

___________________________ROBERT J. MCDONALD

J.S.C.