By notice of motion filed on May 27, 2011, under motion sequence four, defendant Rose K. Boonin moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that plaintiff Vadim B. Gringaus did not sustain a serious injury within the meaning of Insurance Law §5102(d) and plaintiff Alla A. Gringaus' claim is derivative to Vadim B. Gringaus' claim. By stipulation of all parties dated September 3, 2009, plaintiffs discontinued the action against defendant Nathaniel B. Boonin. Plaintiffs oppose the motion.

BACKGROUND

On June 11, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated September 4, 2009, defendant Rose K. Boonin joined issue. On April 12, 2011, a note of issue was filed.

Plaintiffs' instant action is to recover damages for personal and derivative injuries [*2]sustained as a result of a motor vehicle accident. Plaintiffs have alleged in the complaint and bill of particulars that on December 19, 2006, at approximately 12:00 a.m., defendant Nathaniel B. Boonin negligently drove a vehicle at the intersection of West Street and Warren Street in the County and City of New York and struck the rear of Vadim B. Gringaus' vehicle causing serious injury to him and derivative injury to his spouse.

MOTION PAPERS

Defendant's motion papers consist of an attorney's affirmation and nine annexed exhibits, labeled A through I. Exhibit A is an E-Law print out. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C is a copy of defendant's verified answer dated September 4, 2009. Exhibit D is the parties stipulation discontinuing the action against Nathaniel Boonin. Exhibit E is a copy of plaintiff's verified bill of particulars dated April 7, 2010. Exhibit F is a copy of the transcript of plaintiff's deposition conducted on December 16, 2010. Exhibit G is the affirmed medical report of Dr. Michael J. Katz, pertaining to his orthopedic examination of Vadim Gringaus on February 9, 2011. Exhibit H, is the radiological report of Dr. Daniel Wilen, opining on Vadim Gringaus' cervical, thoracic and lumbar spine x-rays taken on February 8, 2007. Exhibit I is the affirmed medical report of Dr. Alan B. Greenfield in which he opined on Vadim Gringaus' MRI lumbar spine study conducted on February 23, 2007.

LAW AND APPLICATION

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 1062 [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 [*3]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 [2d 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 evidence of the injury." (Id. at 84.)

In support of the instant motion, defendant submitted the affirmed report of Dr. Michael J. Katz, defendant's examining orthopedic surgeon. Dr. Katz examined Vadim Gringaus on February 9, 2011, and conducted range of motion testing of his cervical and lumbar spine, right hip and right knee. Dr. Katz compared his finding to what was normal and concluded that plaintiff had normal range of motion in all areas, had no disability and had resolved soft tissue injuries.

Dr. Katz's examination was conducted over four years after the accident of December 19, 2006 and was silent on the plaintiff's medical condition during the six month period following the accident. Plaintiff's verified bill of particulars dated April 7, 2010 , however, admits in paragraph six and seven, that he was confined to bed and to home for approximately three weeks and that he lost one week of work due to the accident.

The defendant may rely on plaintiff's admissions in the 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 a week from and having been confined to home and incapacitated from household duties for only three weeks, 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 [1d 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 Vadim Gringaus 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.

In opposition, the plaintiff failed to raise a triable issue of fact. Since the plaintiff alleged a permanent serious injury and a significant limitation of use, plaintiff was required to submit objective medical evidence based upon a recent examination (see Ali v. Mirshah, 41 AD3d 748 [2d 2007]); see also Mejia v. DeRose, 35 AD3d 407 [2006]) [*4]Plaintiff failed to satisfy this requirement. Plaintiff submitted the affirmation of Dr. Wilen, his treating physician, which set forth his findings based on an examination of the plaintiff on February 8, 2007. Dr. Jacon Nir, plaintiff's treating physiatrist set forth his findings based on an examination of the plaintiff on December 19, 2006. Dr Raymond Bartoli, plaintiff's treating chiropractor, set forth his findings from three examinations of the plaintiff which occurred on December 19, 2006, February 23, 2007 and May 2007.

Furthermore, in view of the plaintiff's verified bill of particulars and deposition testimony that he missed only one week of work and was confined to bed and to home for only three weeks as a result of the subject accident, he failed to raise a triable issue of fact under the 90/180 day category of Insurance Law 5102(d) (Bamundo v. Fiero, 88 AD3d 831 [2d 2011]).

Defendant's motion pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that Vadim B. Gringaus did not sustain a serious injury within the meaning of Insurance Law §5102(d) is granted.

The foregoing constitutes the decision and order of this court.

Enter:________________________________

J.S.C.