The motion by plaintiff for an order pursuant to C.P.L.R. §3212 granting her summary judgment on the issue of liability and on the ground that plaintiff has sustained a serious injury as required under Insurance Law §5102, is granted.

The cause of action is for personal injuries sustained by the plaintiff in a motor vehicle accident that occurred on November 18, 2010 when the vehicle she was driving was stopped westbound on Fordham Road at or near the intersection with the Major Deegan Expressway and was struck in the rear by defendant's vehicle.

Plaintiff moves for summary judgment first on the issue of liability. In support of her motion, plaintiff submits an affidavit wherein she states that she had been driving on Fordham Road and brought her car to a slow and gradual stop. She was stopped for at least 45 seconds when it was "violently" struck in the rear by defendant's vehicle. She asserts that she did not stop her vehicle abruptly. (Exhibit 1).

With respect to her motion for summary judgment on the issue of serious injury, in her affidavit, plaintiff claims that she was severely injured and sustained a bulge to her lumbar spine, lumbar radiculopathy, bilateral carpal tunnel syndrom, right knee internal derangement, straightening of the cervical lordosis due to spasm, focal disc bulge with neural canal impingement to her cervical spine, cervical radiculopathy and limitation of flexion, extension and [*2]rotation of the lumbar spine. She claims that as a result of the accident, she was completely incapacitated and unable to perform substantially all of the material acts which constituted her usual and customary daily activities from the date of that accident through and including March 14, 2011. She asserts that she was incapacitated for 116 days immediately following the accident. (Exhibit 1)

Plaintiff further avers that she was also unable to work for 116 days immediately following the accident and to date, is intermittently confined to her bed and home. She experiences significant muscle spasms and body tightness as well as a reduction in her range of motion, overall mobility, flexibility and movement. Her activities are still curtailed and she still requires consistent bed rest. (Exhibit 1).

Plaintiff submits an affirmation from her treating doctor, Jean D. Miller, D.O., a board certified doctor of osteopathy who practices neuromusculoskeletal medicine. Dr. Miller claims, in her affirmation, that plaintiff has been under her continuous care since the subject accident. She avers that plaintiff sustained medically determined injuries in the car accident and that the injuries disabled plaintiff to such an extent that she was unable to perform substantially all of the material acts which constituted her usual and customary daily activities from the date of the accident through and including March 14, 2011. (Exhibit 3). Dr. Miller further affirms that to a reasonable degree of medical certainty, the injuries sustained by plaintiff can be causally connected to the subject accident. Plaintiff continues to experience pain and based upon her history, physical examination and a review of her medical records, plaintiff will continue to have permanent recurrent pain and limitation in her activities of daily living. Dr. Miller opines that the injuries are permanent in nature and that her findings are confirmed by her physical examination of plaintiff, her treatment of her and the "objective MRI results, and other tests." (Exhibit 3, para. 4).

Plaintiff also submits an affidavit from her employer, Ravi Annamaneni, the manager of Rite Care Pharmacy, where plaintiff was employed at the time of her accident. In his affidavit, Mr. Annamaneni asserts that plaintiff did not return to work at the pharmacy after November 18, 2010. (Exhibit 4).

As a result of the foregoing, plaintiff contends that summary judgment should be granted in her favor.

Defendant opposes the motion and inexplicably submits two affirmations in opposition from two different attorneys at the same law firm. In one affirmation in opposition, defendant solely opposes the motion as it pertains to whether or not plaintiff sustained a serious injury. Defendant then, without permission of this court, submits an additional affirmation opposing the other branches of plaintiff's motion such as the motion for summary judgment on the issue of liability. The second submission by defendant is improper and was submitted one day prior to the return date of the motion. Accordingly, that affirmation and opposition will not be considered by this court. [*3]

With respect to defendant's timely opposition of plaintiff's motion on the issue of serious injury, defendant asserts that the motion is premature as he has not yet had the opportunity to have plaintiff examined by doctors. Defendant argues that plaintiff's affidavit of merit is not admissible probative evidence on medical issues. Defendant then cites several cases involving motions for serious injury in general and those involving the 90/180 category of serious injury, which plaintiff claims is applicable to her.

It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor...and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979). The court's function on a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

On the issue of liability, courts have ruled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle and imposes a duty of explanation on the operator as to how the accident occurred. Cabrera v. Rodriguez, 72 AD3d 553 (1st Dept. 2010); Bando-Twomey v. Richheimer, 229 AD2d 554 (2nd Dept. 1996). The party operating the offending vehicle must offer a non-negligent explanation for the collision to overcome the inference of negligence. See, Barile v. Lanzzarini, 222 AD2d 635 (2nd Dept. 1995).

It has also been established that, "Drivers must maintain safe distances between their cars and cars in front of them (Vehicle and Traffic Law §1129[a]) and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages (citations omitted)." Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). The court in that case further stated that "...drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident' (citations omitted)." Id. at 271.

Courts can deny a summary judgment motion as premature where facts essential to justify opposition to the motion may exist but cannot be stated in the opposition papers because they are within the exclusive knowledge of the other party and the motion is made before the parties have had an opportunity to conduct discovery. See, C.P.L.R. §3212(f); Smith v. City of New York, 133 AD2d 818 (2nd Dept. 1987); Morris v. Hochman, 296 AD2d 481 (2nd Dept. 2002).

Plaintiff's motion for summary judgment on the issue of liability is granted. This court has disregarded defendant's opposition papers with respect to the issue of liability. However, even if this court were to consider defendant's untimely and improper affirmation in opposition to [*4]plaintiff's motion for summary judgment on the issue of liability, the motion would still be denied. Defendant's opposition is based on his contention that plaintiff's motion is premature since discovery has not yet been held. The rest of the opposition papers are simply a regurgitation of case law involving summary judgment in general and summary judgment in cases involving rear-end collisions.

Defendant argues that there are issues of negligence, foreseeability and proximate cause that are for a jury to determine. However, defendant fails to raise an issue of fact on the issue of liability and his opposition papers are deficient in that they consist solely of an affirmation from defendant's counsel. Courts have held that, "...mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient..." to defeat a motion for summary judgment. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). Moreover, in Johnson v. Phillips, (supra), the court ruled that, "...defendant's failure to submit his own sworn attestations in opposition to the motion, when he would naturally be the party in possession of the relevant knowledge...leaves defendant's opposition fatally deficient." (citations omitted). Id. Defendant herein has failed to submit such an affidavit rendering his opposition fatally deficient. Therefore, plaintiff's motion for summary judgment on the issue of liability is granted.

With respect to plaintiff's motion for summary judgment on the issue of serious injury, under the "no fault" law, in order to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained. See, Licari v. Elliott, 57 NY2d 230 (1982). "It is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute." Id. at 237. New York Insurance Law §5102(d), defines "serious injury" as, "a personal injury which results in...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 party 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."

The defendant has the burden of establishing that the plaintiff has not suffered a serious injury as a result of the accident. The defendant must submit, "...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 (2nd Dept. 2000). When a defendant's motion is sufficient to raise the issue that a serious injury has been sustained, then the burden shifts to plaintiff to produce prima facie evidence in admissible form to support the claim of a serious injury. If the defendant fails to meet this initial burden, then the court need not consider whether the plaintiff's papers raise a triable issue of fact. Trantel v. Rothenberg, 286 AD2d 325 (2nd Dept. 2001); Papdonikolakis v. First Fidelity Leasing Group, Inc., 283 AD2d 470 (2nd Dept. 2001).

Plaintiff herein is alleging that she sustained a serious injury in the subject accident under [*5]the 90/180 category found under Insurance Law §5102(d). In support of her claim, she submits her own affidavit as well as an affirmation from her doctor attesting to the fact that plaintiff has sustained an injury that has prevented her from performing substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident. Plaintiff was confined to her bed and home and did not work for 116 days immediately following the accident. Defendant has not submitted any proof in admissible form to refute that. The fact that defendant claims that he has not had the opportunity to have the plaintiff examined by doctors is unavailing as any medical reports submitted by a doctor who examines plaintiff more than a year after the accident would be insufficient for defendant to establish that plaintiff has not sustained a serious injury under the 90/180 category found under Insurance Law §5102. Frier v. Teague, 288 AD2d 177 (2nd Dept. 2001)

Accordingly, plaintiff's motion for summary judgment on the issue of liability is granted and the motion is granted on the issue of serious injury with respect to the 90/180 category. Plaintiff's further motion to strike several of defendant's affirmative defenses are granted since defendant failed to address that branch of the motion in the opposition papers that were timely submitted to this court.

Plaintiff is directed to serve a copy of this order with notice of entry upon the defendant and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated: October 19, 2011

J.S.C.