By notice of motion filed on December 22, 2011, under motion sequence three, defendants Border Cab Corporation (hereinafter BCC) and Leslie Brown (hereinafter Brown) jointly move pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims against them on the basis that: (1) Brown was not negligent in the operation of his vehicle and (2) the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). Plaintiff and defendant Ruben D. Rosario (hereinafter Rosario) oppose the motion.

By notice of motion filed on February 14, 2011, under motion sequence four, defendant Rosario moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims against him on the basis that: (1) he was not negligent in the operation of his vehicle and (2) the plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). Plaintiff opposes the motion.

BACKGROUND

On August 20, 2010, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer and cross-claims dated September 14, 2010, defendants BCC and Brown joined issue. By verified answer and cross-claims dated November 4, 2010, defendant Rosario joined issue. On October 17, 2011, a note of issue was filed.

The instant action is to recover damages for personal injuries sustained as a result [*2]of a motor vehicle accident. Plaintiff alleges in her complaint and bill of particulars that on August 7, 2008, at approximately 3:30 a.m., she was a passenger in a vehicle operated by Brown and owned by BCC. At that date and time, Brown drove his vehicle on Broadway and made a left turn at the intersection of Broadway and Linden Street in Brooklyn, New York. In order to negotiate the turn Brown drove across the oncoming lane of traffic on Broadway traveling in the opposite direction. After making the turn, Brown's vehicle collided with a vehicle owned by Rosario and operated by a driver who left the scene.

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).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990])"(People ex rel. Spitzer v. Grasso, 50 AD3d 535, 544 [1d 2008]).

On August 7, 2008, at around 3:00 a.m., Leslie Brown drove Denise Seye in a vehicle owned by Border Cab Corporation. As Leslie Brown approached the vicinity of Broadway and Linden Street, an intersection not controlled by any traffic devices, he attempted a left hand turn across opposing traffic on Broadway and was struck by a vehicle owned by Ruben Rosario after nearly completing the turn. Leslie Brown states that he did not see the Ruben Rosario vehicle until after it struck him because the vehicle did not have its headlights on.

VTL § 375(2)(a)(1) provides in pertinent part:

(a) Every motor vehicle except a motorcycle, driven upon a public highway during the period from one-half hour after sunset to one-half hour before sunrise or at any other time when windshield wipers are in use, as a result of rain, sleet, snow, hail or other unfavorable atmospheric condition, and at such other times as visibility for a distance of one thousand feet ahead of such motor vehicle is not clear, shall display:

1. at least two lighted head lamps on the front, one on each side, having light sources of equal power

"Vehicle and Traffic Law § 1141 requires that "[t]he driver of a vehicle intending to turn [*3]to the left within an intersection . . . yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right-of-way is entitled to anticipate that the other driver will obey traffic laws that require her to yield (see Kann v. Maggies Paratransit Corp., 63 AD3d 792, 793 2d [2009]; Berner v. Koegel, 31 AD3d 591, 592 [2d 2006]; Gabler v. Marly Bldg. Supply Corp., 27 AD3d 519, 520 [2d 2006]). Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v. Lucchese, 35 AD3d 672 [2d 2006]; Berner v. Koegel, 31 AD3d at 592; Bongiovi v. Hoffman, 18 AD3d 686, 687 [2d 2005]; Bolta v. Lohan, 242 AD2d 356 [2d 1997])." (Kucar v. Town of Huntington, 81 AD3d 784 [2d 2011]).

Leslie Brown's deposition testimony supports Rosario's contention that Brown violated Vehicle and Traffic Law § 1141 when he made a left turn directly into the path of Rosario's vehicle (see Maloney v. Niewender, 27 AD3d 426 [2d 2006]; Moreback v. Mesquita, 17 AD3d 420, 421 [2d 2005]; Casaregola v. Farkouh, 1 AD3d 306 [2d 2003]). The Rosario vehicle, who had the right-of-way, was entitled to anticipate that Leslie Brown would obey the traffic laws which required him to yield (Moreno v. Gomez, 58 AD3d 611 [2d 2009] citing Agin v. Rehfeldt, 284 AD2d 352 [2d 2001] and Cenovski v. Lee, 266 AD2d 424 [2d 1999]).

The court finds no merit to Brown and BCC's contention that the failure of Ruben Rosario's vehicle to have its head lights on was the sole proximate cause of the subject accident. Brown's explanation of the collision raises a triable issue of fact concerning his own contributory negligence without regard to the sufficiency of the opposing papers.

Rosario's cross-motion for summary judgment seeks dismissal of the complaint and all cross-claims on the basis that the driver of the Rosario vehicle was not negligent. However, Rosario's motion papers asks the court to adopt the arguments, exhibits and memorandum of law submitted by BCC and Brown in support of their motion. Rosario submits no other evidence to support this branch of his cross-motion. It is not surprising that Rosario cannot support his motion with an affidavit of his driver since the driver fled the scene and probably committed a crime by doing so (see VTL § 600(2)). The papers Rosario wants the court to consider do not establish that the Rosario vehicle was free of negligence in causing the collision. Indeed, the papers are silent on Brown and BCC's claim that the Rosario vehicle violated VTL § 375(2)(a)(1) by driving at 3:00 a.m. without its headlights on. Therefore, that branch of BBC, Brown and Rosario's motion for summary judgment finding them not liable for causing the collision is denied. Similarly, there respective motions seeking dismissal of the cross-claims against them based on a claim of no liability is also denied.

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 [*4]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, defendants Brown and BCC submitted the affirmed report of Dr. Jeffrey Lang, a radiologist that they asked to review the MRI studies of the plaintiff's lumbar spine, cervical spine and left hip taken in August and September 2008. Dr Lang did so and found no post traumatic findings. However, Dr. Lang offered no specific opinion as to plaintiff's condition during the relevant 90/180—day period immediately following the accident.

Brown and BCC also asked Dr. Maria De Jesus, a neurologist and Dr. Jacquelin Emmanuel, an orthopedist to examine the plaintiff. On March 31, 2011, each doctor examined the plaintiff and did range of motion testing of plaintiff's cervical and lumbar spine. Dr. De Jesus found no neurological and Dr. Emmanuel found no orthopedic anomalies and each found full range of motion in all areas of claimed injury. Their examinations, however, were conducted over two years after the accident of August 7, 2008, and their affirmed reports were silent on the plaintiff's medical condition during the six month period following the accident.

Therefore, Brown and BBC have not met their burden because the affirmed medical reports submitted by defendants' physicians fail to specifically discuss the 90/180—day category of serious injury clearly articulated in the plaintiff's verified bill of particulars (Scinto v. Hoyte, 57 AD3d 646, 647 [2nd Dept., 2008]). Since Brown and BBC have failed to meet their prima facie burden, we need not consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact. (Marmer v. If USA Express, Inc., 73 AD3d 868, 869, 899 [2d 2010]).

Rosario's motion for dismissal relied on the same medical reports contained in Brown and BBC's motion papers. Rosario offered nothing new or different.

Brown and BBCs motion to dismiss the complaint pursuant to CPLR 3212 based on their alleged lack of negligence and based on plaintiff's failure to sustain a serious injury within the meaning of Insurance Law §5102(d) is denied.

Rosario's cross-motion to dismiss the complaint pursuant to CPLR 3212 based on his alleged lack of negligence and based on plaintiff's failure to sustain a serious injury within the meaning of Insurance Law §5102(d) is also denied.

The foregoing constitutes the decision and order of this court.

Enter:

J.S.C.