The following papers numbered 1 to 17 were read on this motion by defendant, ZHONG RONG ZHU, for an order pursuant to CPLR 3212 granting the defendant summary judgment and dismissing the complaint of plaintiff, YOO HA PARK, on the ground that said plaintiff has not sustained a serious injury within the meaning of Insurance Law §§ 5102 and 5104:

Papers Numbered

Notice of Motion-Affidavits-Exhibits..............1 - 7

Affirmation in Opposition-Affidavits..............8 - 14

Reply Affirmation................................15 - 17

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In this negligence action, the plaintiff, Yoo Ha Park, seeks to recover damages for personal injuries he allegedly sustained as a result of a multi-vehicle accident that occurred on October 12, 2011, on the Brooklyn Queens Expressway, near the exit for the Grand Central Parkway. Plaintiff alleges that his vehicle was struck in the rear by the defendant's vehicle while he was stopped in traffic. Plaintiff, alleges that as a result of the [*2]accident he sustained, inter alia, a bulging disc and a herniated disc of the lumbar spine.

The plaintiff commenced this action by filing a summons and complaint on November 30, 2011. Issue was joined by service of defendant's verified answer with a counterclaim against Yoo Ha Park dated January 20, 2012. By decision and order dated October 4, 2013, this Court granted the plaintiffs' motion for summary judgment on the issue of liability. This matter is presently on the calendar of the Trial Scheduling Part on June 24, 2014 for a trial on threshold and damages. Defendant now moves for an order for summary judgment, pursuant to CPLR 3212, dismissing the complaint of plaintiff, Yoo Ha Park, on the ground that the injuries claimed by said plaintiff fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.

In support of the motion, defendant submits an affirmation from counsel, Matthew J. Jones, Esq., a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial; and a copy of the affirmed medical reports of board certified orthopedic surgeon, Dr. Michael J. Katz, and board certified neurologist, Dr. Daniel Feuer.

In his verified bill of particulars, the plaintiff, states that as a result of the accident, he sustained inter alia, a disc bulge at L3-L4 and a disc herniation at L4-L5, as well as restrictions of range of motion of the lumbar spine and cervical spine, left shoulder sprain and strain and right shoulder sprain and strain. The plaintiff contends that he sustained a serious injury as defined in Insurance Law §5102(d).

At his examination before trial which took place on March 6, 2013, Yoo Ha Park, a delivery man and salesperson, age 52, testified that on October 12, 2012, he was operating his Ford Minivan at approximately 7:50 a.m. when he was involved in a motor vehicle accident on the Brooklyn Queens Expressway near the exit for the Grand Central Parkway. He had been stopped in traffic when his vehicle was struck from behind by the Lincoln Town Car operated by defendant Zhu. As a result of the collision his neck and back impacted the seat and headrest. He left the scene in his vehicle and went to his office. Later that day he began to experience pain in lower back, neck, and right leg. Three days after the accident he sought treatment at the Kyung Hyun Ko Pain Clinic. He was treated with physical therapy, heat, massage, chiropractic and acupuncture at the rate of three times per week for six months. At the end of the six months he still [*3]felt the same. He stopped going for treatments because his no-fault insurance was terminated. He has not seen any doctors or been treated for his injuries since June 1, 2012. He states that as a result of the accident he still has lower back pain on a daily basis, he can no longer exercise, or lift heavy objects or do housework. As a result of the accident he did not miss any days from work.

The plaintiff was seen for an independent medical evaluation on April 22, 2013 by orthopedic surgeon, Dr. Michael J. Katz., a physician retained by the defendant. At that time the defendant reported to Dr. Katz that he was involved in a motor vehicle accident in October 2011 at which time he injured his neck, back, both shoulders, both elbows and right knee. Dr. Katz tested the plaintiff's range of motion using an orthopedic goniometer and found that the plaintiff had no limitations of range of motion of the cervical spine, lumbar spine, right shoulder, left shoulder, right and left elbows or right knee. Based upon his examination, he states that the plaintiff showed no signs or symptoms of permanence relative to the musculoskeletal system. The plaintiff had full range of motion with no positive objective findings on examination. Dr. Katz states that the plaintiff is not disabled and is capable of gainful employment in a demanding capacity as a delivery person and is capable of his activities of daily living.

Dr. Daniel Feuer, a board certified neurologist, retained by the defendant, examined the plaintiff on April 30, 2013. At that time the plaintiff told Dr. Feuer that as a result if the accident he injured his lower back and neck. He presented with recurring low back pain and right knee pain. Objective range of motion testing indicated no loss of range of motion of the cervical spine or the lumbosacral spine. Dr. Feuer concludes that the clinical examination fails to document focal motor, reflex or sensory deficits to support a diagnosis of radiculopathy or neuropathy. Dr. Feuer states that his neurological examination was normal and that the plaintiff does not demonstrate any objective neurological disability or neurological permanency. The doctor opines that the plaintiff is neurologically stable to engage in full active employment as a van driver.

Defendant's counsel contends that the affirmed medical reports of Drs. Feuer and Katz are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent loss of a body organ, member, function or system and that he has not sustained a permanent consequential limitation of a body organ or member or a significant limitation of use of a body function or system. Counsel also contends that the plaintiff, who did not [*4]miss any days from work immediately following the accident, did not sustain a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff, for not less than 90 days during the immediate one hundred days following the occurrence, from performing substantially all of his usual daily activities.

In opposition, plaintiff's attorney, David J. Lawrence, Esq., submits his own affirmation as well as the affirmed medical reports of Dr. Mary Hu, Dr. Jigmyasa Desai, Dr. Yong Chi, Dr. Polavarapu and an affidavit from the plaintiff.

In his affidavit, the plaintiff states that despite his treatment and physical therapy he still feels pain in his back which interferes with his life on a daily basis. He stated that when his no fault benefits were terminated after six months he could no longer continue medical treatments as he had no private health insurance and could not afford to pay for it out of pocket.

Dr. Mary Hu, a board certified radiologist, examined the MRI study of plaintiff's lumbar spine taken on November 16, 2011 and states in her affirmed report that she observed a disc bulge at L3-L4 and a disc herniation at L4-L5.

Dr. Desai examined the plaintiff on November 23, 2013. At that time he conducted range of motion testing and found that the plaintiff displayed significant loss of range of motion of the cervical and lumbar spines. He attributed the decrease in range of motion to the injuries the plaintiff sustained in the motor vehicle accident of October 2011.

Dr. Chi, the plaintiff's treating physician at KHK PT PC, initially examined the plaintiff on October 15, 2011, three days following the accident. At that time the plaintiff complained of pain to the lower back, elbows, bilateral shoulders, and chest. After examining the plaintiff, Dr. Chi found that plaintiff sustained injuries to his cervical and lumbar spines which are causally related to his accident of October 2011. Dr. Chi also states that the plaintiff stopped treating at his facility because his no-fault insurance was cut-off and he could not afford to pay for treatment out-of-pocket.

Dr. Polavarapu, an orthopedic surgeon who performed an IME on February 22, 2012, found limitations of range of motion of the plaintiff's cervical spine and lumbar spine. He stated that the injuries were causally related to the accident and that there was [*5]evidence of a mild orthopedic disability.

On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, the defendant bears the initial burden of presenting competent evidence that there is no cause of action (Wadford v. Gruz, 35 AD3d 258 [1st Dept. 2006]). "A defendant can establish that plaintiff's injuries are not serious within the 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" (Grossman v Wright, 268 AD2d 79 [1st Dept. 2000]). Whether a plaintiff has sustained a serious injury is initially a question of law for the Court (Licari v Elliott, 57 NY2d 230 [1982]).

Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury (see Gaddy v Eyler, 79 NY2d 955 [1992] Zuckerman v City of New York, 49 NY2d 557[1980] Grossman v Wright, 268 AD2d 79 [2d Dept 2000]).

Here, the competent proof submitted by the defendant, including the affirmed medical reports of Drs. Feuer and Katz, as well as the plaintiff's deposition testimony, in which he stated that he missed no work following the accident, are sufficient to meet defendant's prima facie burden by demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002] Gaddy v Eyler,79 NY2d 955 [1992] Carballo v Pacheco, 85 AD3d 703 [2d Dept. 2011] Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973 [2d Dept. 2010]).

However, this Court finds that the plaintiff raised triable issues of fact by submitting the affirmed medical reports of plaintiff's examining physicians, Drs. Hu, Desai, Chi and Polavarapu, attesting to the fact that the plaintiff had significant limitations in range of motion of the cervical and lumbar spine both contemporaneous to the accident and in a recent examination, and concluding that the plaintiff's limitations were significant and permanent and resulted from trauma causally related to the accident (see Perl v Meher, 18 NY3d 208[2011] [*6]Rosa v Mejia, 95 AD3d 402 [1st Dept. 2012] Ortiz v Zorbas, 62 AD3d 770 [2d Dept. 2009] Azor v Torado, 59 ADd 367 [2d Dept. 2009]). As such, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury under the permanent consequential and/or the significant limitation of use categories of Insurance Law § 5102(d) as a result of the subject accident (see Khaimov v Armanious, 85 AD3d 978 [2d Dept. 2011] Jilani v. Palmer, 83 AD3d 786 [2d Dept. 2011] Khavosov v Castillo, 81 AD3d 903 [2d Dept. 2011] Mahmood v Vicks, 81 ADd 606 [2d Dept. 2011] Compass v GAE Transp., Inc., 79 AD3d 1091[2d Dept. 2010] Evans v Pitt, 77 AD3d 611 [2d Dept. 2010] Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010]).

In addition, the plaintiff adequately explained the gap in treatment by submitting his own affidavit as well as the affidavit of Dr. Chi stating that no-fault had stopped his benefits and he could not afford to pay for his treatments out-of-pocket(see Abdelaziz v Fazel, 78 AD3d 1086 [2d Dept. 2010] Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010] Gutierrez v. Yonkers Contr. Co., 61 AD3d 823 [2d Dept. 2009] Delorbe v Perez, 59 AD3d 491 [2d Dept. 2009] Domanas v Delgado Travel Agency, Inc., 56 AD3d 717 [2d Dept. 2008]).

Accordingly, for the reasons set forth above, it is hereby,

ORDERED, that the defendant's motion for an order granting summary judgment dismissing the complaint of plaintiff, YOO HA PARK, is denied.

Dated: March 11, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.