Upon the foregoing papers, Defendant, Latchana Subhan, moves for an Order, pursuant to CPLR �3212, granting summary judgment and dismissing the complaint on the grounds that Plaintiff did not sustain a "serious injury" as that term is defined in Insurance Law �5102[d]. Defendant further moves for summary judgment on the basis that he is not liable for the subject accident. Plaintiff opposes. For the reasons set forth below, Defendant's motion is denied.

This is an action to recover for personal injuries allegedly sustained by Plaintiff as a result of a motor vehicle accident that occurred near the intersection of Jay and Sands Streets in Brooklyn, New York on June 17, 2008. Plaintiff's Notice of Claim alleges that his vehicle was struck by Mr. Subhan's vehicle, in part due to the negligence of the City's traffic enforcement agent in directing traffic. However, after oral argument, this Court granted the City of New York's motion for summary judgment on the grounds that the City is immune from liability for the performance of discretionary acts by municipal traffic enforcement agents (see Santos v County of Westchester, 81 AD3d 710, 711 [2d Dept 2011]).

Plaintiff's Bill of Particulars alleges, inter alia, injuries to his neck, back and right shoulder and hand. He claims that his injuries fall within the following categories of �5102[d]: permanent loss of use of a body organ, member, function or system; permanent consequential and/or significant limitation of use of a body organ, function or system; and/or a medically determined injury/impairment of a non-permanent nature which prevents him from performing substantially all of his 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. [*2]

Insurance Law �5102[d] provides that a "serious injury" means "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.

Under the "no-fault" law, to maintain an action for personal injury, a plaintiff must establish that a "serious injury" has been sustained (Licari v Elliott, 57 NY2d 230, 235 [Ct App 1982]. It is for the court to determine in the first instance whether a prima facie showing of "serious injury" has been made out (see Tipping-Cestari v Kilhenny, 174 AD2d 663, 663 [2d Dept 1991]). The proponent of a motion for summary judgment to dismiss a complaint for failure to set forth a prima facie case of serious injury bears the initial burden of presenting evidence in competent form showing that plaintiff has no cause of action (Spencer v Golden Eagle Inc., 82 AD3d 589, 589 [1st Dept 2011]). Such evidence includes affidavits from medical experts who examined plaintiff and conclude that no objective medical findings support the plaintiff's claim (Id.). Once the movant satisfies his or her burden, the burden then shifts to plaintiff who must produce evidence in admissible form to support the claim of serious injury (Licari, 57 NY2d at 238).

Here, in support of the instant motion, Defendant submits the affirmed report of his orthopedic expert, Alan J. Zimmerman, MD, who examined Plaintiff on September 7, 2010.

The Court finds Dr. Zimmerman's report to be insufficient to establish Defendant's prima facie burden that Plaintiff did not suffer from a serious injury as defined by New York's Insurance Law.

Dr. Zimmerman's comparative analysis of Plaintiff's range of motion ("ROM") to the purported "normal" ROM for the cervical spine lacks specificity in that he did not compare the purported limitation to a definitive "normal" reading. Rather, Dr. Zimmerman compared the results to a purported "normal" range which varied up to 30 degrees. For example, his report reveals the following limitations for Plaintiff's cervical spine: flexion and extension of 45 degrees (normal 45-60 degrees), left and right lateral bending of 45 degrees (normal 30-60 degrees), and left and right rotation 60 degrees (normal 45-60 degrees). When rendering an opinion with respect to the plaintiff's ROM, the orthopedist must compare any findings to those ranges of motion considered normal for the particular body part (Qu v Doshna, 12 AD3d 578, 578 [2d Dept 2004]). Here, Dr. Zimmerman references a broad range of degrees that would qualify as a "normal" reading for the cervical spine but provides specific "normal" readings for the shoulder and lumbar spine without indicating any reason for the differentiation. This leaves the Court to speculate how the variations in the ROM are relative to Dr. Zimmerman's findings, and as to the actual value of the ROM figures for the cervical spine.

In addition, Dr. Zimmerman's bare conclusory opinion that all of the cervical MRI findings are degenerative, preexisting and not causally related as evidenced by the "multiplicity of levels involved," without further explanation, is insufficient to meet Defendant's prima facie burden. Dr. [*3]Zimmerman's report fails to reconcile two seemingly contradictory statements - his bare conclusion that all of the cervical MRI findings are degenerative and his diagnosis acknowledging Plaintiff's prior neck and back injuries stemming from two other motor vehicle accidents, one in 2007 and the other in 2009. The Court is thus left to speculate as to how Dr. Zimmerman arrived at his opinions.

Furthermore, although Dr. Zimmerman states that "[a] lumbar disc bulge is of no clinical significance," he has set forth no basis for his opinion.

Additionally, Dr. Zimmerman did not examine Plaintiff during the statutory period of 180 days following the accident, thus rendering his affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether Plaintiff was unable to substantially perform all of the material acts which constituted his usual and customary daily activities for a period in excess of 90 days (during the 180 days immediately following the accident) (Blanchard v Wilcox, 283 AD2d 821, 824 [3d Dept 2001]). Defendant fails to point to anything in the record indicating that Plaintiff's activities were not significantly curtailed during the relevant time period.

Based on the foregoing, Defendant failed to establish his prima facie entitlement to summary judgment on the issue of whether Plaintiff sustained a "serious injury." Since the Defendant failed to meet his prima facie burden, it is unnecessary to address the issue of whether Plaintiff's submission in opposition is sufficient to raise a triable issue of fact (see Sainnoval v Sallick, 78 AD3d 922, 922 [2d Dept 2010]).

The Court additionally finds that issues of fact exist regarding Defendant's responsibility for the subject accident as indicated by the testimonies of Defendant and Plaintiff.

Accordingly, Defendant's motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.

Dated: November 17, 2011___________________________

SYLVIA G. ASH, J.S.C.