Plaintiff's C.P.L.R § 3212 motion for summary judgment on the issue of liability as against defendants Alfred Vega and Nicholas Emanuele is granted. Plaintiff's further motion for summary judgment on the issue of serious injury is denied without prejudice to renewal upon completion of discovery. Plaintiff's C.P.L.R § 3211(b) motion to strike defendant Vega's fourth, fifth, seventh, and eighth affirmative defenses is granted. However, plaintiff's motion to strike defendant Vega's second affirmative defense is denied. Finally, plaintiff's motion to strike defendant Emanuele's first, second, and third affirmative defenses is granted.

The cause of action is for personal injuries sustained by plaintiff on October 9, 2011 on the west side of Bronx River Road at or near the intersection of Wakefield Avenue in Yonkers, New York when a car operated by defendant Vega allegedly came into contact with a car operated by defendant Emanuele causing defendant Emanuele's vehicle to crash into plaintiff on the sidewalk.

In support of her motion for summary judgment on the issue of liability, plaintiff submits a sworn affidavit and police report from the incident. In her affidavit, plaintiff contends that she was on the sidewalk at all times prior to being hit by defendant Emanuele's car. Neither defendant presents evidence to contradict this assertion. However, defendant Emanuele asserts that plaintiff's motion for summary judgment on the issue of liability is premature because none of the parties have been deposed and a genuine issue of material fact may still exist regarding whether plaintiff saw defendant Emanuele's vehicle and was capable of avoiding injury. In contrast, defendant Vega does not contest the motion for summary judgment on the issue of liability.

It is well established that summary judgment is a drastic remedy that should not be [*2]granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 233 (1978). For summary judgment to be granted, the moving party must establish his or her cause of action or defense by presenting evidentiary proof in admissible form that would be sufficient to warrant the court in directing judgment in favor of the moving party. Friends of Animals, Inc. v. Associated Furniture 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 that would require a trial of the action. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

Plaintiff asserts that summary judgment is not premature because defendants possess sufficient personal knowledge to resolve the issue of liability and have failed to show that discovery would lead to new evidence sufficient to justify opposition to the motion. In support of this proposition, plaintiff refers to Jean v. Zong Hong Xu, 288 AD2d 62 (1st Dep't 2001), where the court granted plaintiff's motion for summary judgment on the issue of liability, prior to discovery, due to the fact that defendant failed to raise a material issue of fact that would offer a non-negligent reason for the incident in question. Rule 3212 (b) is likewise clear that the mere lack of depositions is insufficient to preclude summary judgment where plaintiff has established a prima facia case against the defendant and no material issue of fact is left to be resolved. Accordingly, this court may grant plaintiff's motion for summary judgment if plaintiff has generally established defendant's negligence and defendant fails to raise a material issue of fact that would offer a non-negligent reason for the incident giving rise to the injuries. Tselebis v. Ryder Truck Rental, Inc., 72 AD3d 198, 200 (1st Dep't 2010).

This court finds that defendant Emanuele's question of what plaintiff saw prior to the incident is immaterial to a determination of plaintiff's motion for summary judgment on the issue of liability. At most, it would indicate that plaintiff was contributorily negligent in being hit by defendant's car. However, contributory negligence is not a bar to summary judgment on the issue of liability in the First Department. Id. Rather, a plaintiff may prevail on a motion for summary judgment on the issue of liability despite his or her own contributory negligence by generally establishing that defendant was negligent and that defendant's negligence constituted a substantial cause of the incident giving rise to plaintiff's injuries. Id.

Even if the evidence were to establish that plaintiff saw defendant Emanuele's car prior to the incident, such information would still fail to provide a non-negligent reason for the presence of defendant Emanuele's car on the sidewalk. The court in Andre v. Pomeroy, 35 NY2d 361 (1974) observed that while summary judgment is rare in negligence cases, "this does not mean that the court is obliged, on policy grounds, to ferret out speculative issues." Similarly, this court need not deny plaintiff's motion based upon the mere possibility that plaintiff may have perceived the car prior to being hit, where such information would not provide a non-negligent reason for defendant's actions.

Moreover, while it is not clear which defendant, if not both, acted negligently in this case, the court in Garcia v. Tri-County Ambulette Service, Inc., 282 AD2d 206 (1st Dep't 2001) [*3]found, upon similar facts, that plaintiff need only establish a prima facia case of negligence against one of the drivers. The court reached this conclusion by reasoning that the plaintiff was free from liability and the accident would not ordinarily have occurred but for the negligence of at least one driver. Id. The court did not require plaintiff to establish a case against a particular driver, but instead only required plaintiff to generally show that the accident would not have occurred unless one of the drivers had acted negligently. Id. Likewise, plaintiff herein need only generally establish that at least one of the defendants acted negligently and that such negligence constituted a substantial cause of the incident giving rise to plaintiff's injuries.

Plaintiff met this burden by relying upon the presumption, uncontroverted by other evidence, that defendant Emanuele's car would not have been forced onto the curb but for the negligence of at least one of the defendants and that plaintiff sustained injuries as a result of such negligence. While it remains to be determined whether these injuries constitute serious injuries for the purpose of satisfying New York Insurance Law § 5102, none of the parties reasonably contest the fact that plaintiff sustained some degree of injury as a result of the accident. Plaintiff is therefore entitled to summary judgment on the issue of liability as against both defendants.

Plaintiff next contends that she is entitled to summary judgment on the issue of serious injury based on the fact that she allegedly sustained (a) a permanent consequential limitation of the use of body organs and members, (b) significant limitation of use or function of body functions or systems, and (c) medically determined injuries and impairments that prevented her from performing substantially all of the material acts constituting her usual and customary activities for more than 90 days during the 180 days immediately following the incident.

To substantiate a claim for serious injury under New York Insurance Law § 5102, a plaintiff must provide objective medical findings "of either a specific percentage of the loss of range of motion or a sufficient description of the qualitative nature of plaintiff's limitations based on the normal function, purpose and use of the body part." Bent v. Jackson, 15 AD3d 46, 49 (1st Dep't 2005) (internal quotations omitted). A plaintiff's subjective testimony as to her own pain or inability to perform specific tasks is insufficient to sustain a claim of serious injury. Glover v. Capres Contracting Corp., 61 AD3d 549 (1st Dep't 2009).

In support of her motion, plaintiff submits her affidavit, which states that her treating physician, who plaintiff fails to name in her affidavit, instructed her to remain out of work and refrain from engaging in normal daily activities. Plaintiff also submits an affirmation from her treating physician, Dr. Rafael Abramov, D.O., in which he details plaintiff's injuries and states that plaintiff was incapacitated for 172 days of the 180 days following the accident. Plaintiff contends that these documents constitute sufficient evidence to warrant summary judgment on the issue of serious injury.

Defendants assert that plaintiff has failed to present objective qualitative or quantitative measures to substantiate her claim for serious injury. Defendant Emanuele alleges that plaintiff failed to disclose which tests were performed and that Dr. Abramov merely restated the injuries listed in plaintiff's bill of particulars, adding only an assertion that plaintiff's injuries were the result of the incident. Defendant Emanuele further alleges that Dr. Abramov's affirmation does [*4]not indicate whether his report was contemporaneous with the incident, that plaintiff lacks evidence that her doctor instructed her not to go to work or perform certain tasks, and that the record lacks evidence of the tests, procedures, and medical documents upon which the doctor based his findings.

Defendant Vega adds that plaintiff's medical evidence consists solely of conclusory statements and lacks evidence of confinement, range of motion testing, and time lost due to injury. Vega further contends that Dr. Abramov's report does not contain any dates, which would allow for establishing whether his examination was contemporaneous with the incident. Accordingly, both defendants oppose granting plaintiff's motion for summary judgment on the issue of serious injury for lack of objective testing and a contemporaneous medical report.

While the court in Perl v. Meher,18 NY3d 208, 218 (2011) rejected the need for contemporaneous quantitative measurements, the court noted that this does not abrogate a plaintiff's need to prove causation through some other means. Accordingly, lack of contemporaneous quantitative measurements is not fatal to a plaintiff's motion for summary judgment on the issue of serious injury. However, summary judgment is inappropriate where a plaintiff fails to produce objective medical findings in an acceptable form to substantiate the seriousness of his or her injuries.

This court finds that plaintiff has failed to provide an objective medical report in accordance with either of the accepted quantitative or qualitative methods. Dr. Abramov's affirmation contains a long list of injuries allegedly sustained by plaintiff, asserts that such injuries were the result of the incident giving rise to this cause of action, and states that such injuries prevented plaintiff from performing "substantially all of the material acts which constituted her usual and customary daily activities." However, Dr. Abramov's affirmation lacks any mention of how he arrived at such conclusions, the types of tests he performed, the dates he met with plaintiff, any numerical assessment of plaintiff's impairment, any form of directive to plaintiff to abstain from work or other activities, and any description of how plaintiff was limited in specific activities. Accordingly, plaintiff has failed to establish a prima facia case of serious injury and has failed to show that her claim under the 90/180 category is based upon medically determined evidence. Summary judgment on plaintiff's claim for serious injury is, therefore, denied.

Plaintiff also seeks to strike defendant Vega's second, fourth, fifth, seventh, and eighth affirmative defenses pursuant to C.P.L.R. § 3211(b).

Defendant Vega's second affirmative defense asserts that plaintiff failed to sustain a serious physical injury as defined by Article 51 of the Insurance Law of the State of New York. The court hereby denies plaintiff's motion to strike defendant Vega's second affirmative defense since there remains an issue of fact as to whether plaintiff sustained a serious injury.

Defendant Vega's fourth affirmative defense asserts that plaintiff was contributorily negligent, or assumed the risk, and that defendant is, therefore, free from negligence. However, defendant Vega does not explain the manner in which plaintiff allegedly acted negligently. [*5]Moreover, as previously discussed, contributory negligence is not a bar to recovery. Accordingly, this court hereby strikes defendant's fourth affirmative defense.

Defendant Vega's fifth affirmative defense, which is a clear example of a boilerplate response, asserts that plaintiff failed to use or misused available seatbelts. As a pedestrian on the sidewalk, plaintiff had no obligation to wear a seatbelt and defendant Vega's fifth affirmative defense is, therefore, stricken.

Defendant Vega's seventh affirmative defense asserts that plaintiff's claim is barred by the three-year statute of limitations. However, plaintiff filed her claim within six months of the incident giving rise to the cause of action and is, therefore, certainly within the statute of limitations. Accordingly, this court hereby strikes defendant Vega's seventh affirmative defense.

Finally, defendant Vega's eighth affirmative defense alleges that plaintiff failed to state a cause of action in her complaint. However, plaintiff alleges that she sustained serious injuries as a result of being hit by a car while on the sidewalk, which does indeed present a cause of action before this court. Accordingly, this court hereby strikes defendant Vega's eighth affirmative defense.

Plaintiff next seeks to strike defendant Emanuele's first, second, and third affirmative defenses pursuant to C.P.L.R. § 3211(b). Defendant Emanuele's first affirmative defense asserts that plaintiff was contributorily negligent or assumed the risk. This affirmative defense is hereby stricken for the reasons previously discussed.

Defendant Emanuele's second affirmative defense asserts that this court lacks jurisdiction over Emanuele by reason of non-service of the summons either personally or by substituted service. Defendant Emanuele's second affirmative defense fails to explain how service was deficient and wholly ignores the fact that defendant Emanuele has submitted a form acknowledging service. Accordingly, this court hereby strikes defendant Emanuele's second affirmative defense.

Defendant Emanuele's third affirmative defense asserts that any injuries were the result of plaintiff's failure to perceive oncoming traffic. However, defendant Emanuele does not offer evidence that the plaintiff was not on the sidewalk and has also failed to overcome his presumption of negligence for the reasons discussed previously. Accordingly, this court hereby strikes defendant Emanuele's third affirmative defense.

All motions with respect to discovery issues shall be made before the presiding judge in the discovery part.

This constitutes the decision and order of this court.

Date: July 11, 2012____________________________

J.S.C.