The following papers numbered 1 to 15 were read on this motion by defendant, MANUEL D. CERON, for an order pursuant to CPLR 3212 granting the defendant summary judgment and dismissing the complaint of plaintiff, YUN KIM GIL, on the ground that the plaintiff has not sustained a serious injury within the meaning of Insurance Law §§ 5102 and 5104:

Papers Numbered

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

Affirmation in Opposition-Affidavits..................8 - 12

Reply Affirmation....................................13 - 15

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This is a personal injury action in which Plaintiff, Yun Gil Kim, seeks to recover damages for serious personal injuries he allegedly sustained on August 6, 2011, as a result of a motor vehicle accident that took place on th eastbound lanes of Horace Harding Expressway near the exit for Parsons Boulevard, Queens County. Plaintiff claims that he was stopped at a red traffic signal when his vehicle was rear-ended by the vehicle operated by defendant Manuel Ceron.

The plaintiff commenced this action by filing a summons and [*2]complaint on December 21, 2011. Issue was joined by service of defendant's verified answer dated July 27, 2012. Plaintiff filed a Note of Issue on August 29, 2013. The matter is presently on the calendar of the Trial Scheduling Part on May 15, 2014.

Defendant now moves for an order pursuant to CPLR 3212 dismissing the plaintiff's complaint on the ground that the injuries claimed by the plaintiff fail to satisfy the serious injury threshold requirement of Section 5102(d) of the Insurance Law.In support of the motion, the defendant submits an affirmation from counsel, William B. Stock, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcript of plaintiff's examination before trial; and the affirmed medical reports of board certified neurologist. Dr. Mariana Golden, and board certified orthopedic surgeon, Dr. Thomas Nipper.

In his verified bill of particulars, the plaintiff, age 58, states that as a result of the accident he sustained a serious injury as defined in Insurance law §5102(d) including a central herniated disc at C5-C6 level and disc bulges at L4-5 and L5-S1.

In his examination before trial taken on May 10, 2013, plaintiff testified that on the date of the accident August 6, 2011, he was working as a tour guide and operating a Mercedes Benz van owned by CIH Tour. He was operating his vehicle on the eastbound lanes of the Horace Harding Expressway when he came to a stop at a red traffic signal at the intersection of Parsons Boulevard. After being stopped for between 30 seconds to one minute his vehicle was struck in the rear by the vehicle operated by the defendant. After getting out of his vehicle and speaking to the defendant and the police and checking on the damage, he declined medical assistance and proceeded to drive his vehicle home from the scene. Plaintiff stated hat he did not experience any pain at the scene but the next morning he felt pain in his neck and lower back. Several days later he sought treatment at "One Pain Clinic" where he was initially examined by Dr. Roh, a chiropractor advised him that he needed to begin a course of physical therapy for pain to his neck, right shoulder and lower back. He continued with physical therapy including acupuncture, chiropractic treatment and electrical stimulation for nine months until May 2012 when he stopped treating due to the termination of no fault benefits. He stated that following the accident he was not confined to his bed or home. After the accident he began working in October 2011. He states that he has no pain at present in his lower back as a result of the accident but he does experience uncomfortableness and occasional pain in his neck and tingling in his finger.

Plaintiff was examined by defendant's retained orthopedist, Dr. Thomas Nipper, on July 24, 2013. The plaintiff told Dr. Nipper that he was struck by a motor vehicle and injured his neck, lower back, right shoulder and left hand. Dr. Nipper performed a physical examination of the plaintiff including objective range of motion testing and found that the plaintiff had no loss of range of motion in the cervical spine, lumbar spine, right shoulder, left shoulder, right wrist and hand, right ankle and left ankle. Following the examination, Dr. Nipper concluded that the plaintiff had no objective evidence of any accident related orthopedic disability or residual effects. He states that plaintiff is capable of working and performing his normal activities of daily living without restriction.

Dr. Marianna Golden, a neurologist retained by the defendant, examined the plaintiff on July 24, 2013. After performing a neurologic examination Dr. Golden states that it is her impression that there is no objective evidence of an accident related disability from a neurologic point of view and no objective evidence of any neurologic permanency.

Defendant's counsel contends that the affirmed medical reports of Drs. Golden and Nipper and the plaintiff's examination before trial are sufficient to establish, prima facie, that the plaintiff has not sustained a fracture, a permanent loss of a body organ, member, function or system; 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 testified that he was not confined to his home or his bed for any period 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 (citing Canelo v Genolg Tr., Inc., 82 AD3d 584 [1st Dept. 2011] McIntosh v O'Brien, 69 AD3d 585 [2d Dept. 2010] Kearse v New York City Tr. Auth., 16 AD3d 45 [2d Dept. 2005]).

Further, defendant asserts that evidence of a disc herniations and disc bulges and tendon tears are insufficient to raise a triable issue of fact under the permanent consequential limitation of use and the significant limitation of use categories of Insurance Law § 5102(d) absent objective proof of the extent and duration of the alleged physical limitations resulting from the injury (see Simanovskiy v Barbaro, 72 AD3d 930 [2d Dept. 2010][the existence of bulging discs and torn ligaments [*3]is not evidence of a serious injury in the absence of objective evidence of the extent and duration of the alleged physical limitations resulting from these injuries] Yakubov v CG Trans Corp., 30 AD3d 509 [2d Dept. 2006] Piperis v Wan, 49 AD3d 840 [2d Dept. 2008]).

In opposition, plaintiff's attorney, Larry I. Badash, Esq., submits his own affirmation as well as an affidavit of the plaintiff; a copy of the police accident report; the affirmed medical report of Dr. Ayoob Khodadadi; and the medical reports of Dr. Benjamin Chang.

In his affidavit, the plaintiff states that following the accident he commenced treatment at ROH Chiropractic in Flushing on August 8, 2011 and also commenced treatment at Liberty Physical Medicine and Rehabilitation, P.C. with Dr. Benjamin Chang on August 11, 2011. He states that he stopped treatment when his no-fault insurance was terminated. He was employed at CIH Tours at the time of the accident but not commence working again until the end of October 2011 at which time he opened his own company. He states he missed an additional 60 days of work between October 2011 and February 2012 for a total of 120 days during the first six months following the accident.

In his affirmed medical report, Dr. Khodadadi, a radiologist, states that he reviewed CT scans of the plaintiff's cervical spine and lumbar spine. In his opinion the plaintiff showed a central herniated disc at the C5-C6 level and bulging discs at L4-5 and L5-S1.

In his report, Dr. Chang states that he examined the plaintiff on August 11, 2011, five days post-accident and found that the plaintiff had pain in his neck, back, right shoulder, TMJ, and right hand numbness. His physical examination at that time showed decreased range of motion of the cervical spine, lumbar spine, right shoulder, and right ankle which he causally related to the subject accident. He recommended a course of physical therapy. Dr. Chang re-examined the plaintiff on March 17, 2014. At that time the plaintiff still complained of pain in his neck, lower back and right shoulder. Objective range of motion testing at that time showed loss of range of motion of the cervical spine, lumbar spine and right shoulder. Dr Chang states that at plaintiff has been suffering from significant limitations of use of his neck, lower back, and right shoulder, that his limitations, which are causally related to the subject accident, are in his opinion permanent in nature and as a result the plaintiff is partially disabled. [*4]

Initially, it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002] Gaddy v Eyler, 79 NY2d 955 [1992]). Where defendant's 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 of Drs. Nipper and Golden, as well as the deposition testimony of the plaintiff stating that he returned to full time work less than 90 days after the accident, is 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]).

However, this Court finds that the plaintiff raised triable issues of fact by submitting the affirmed medical reports of Drs. Chang and Khodadadi attesting to the fact that the plaintiff had significant limitations in range of motion both contemporaneous to the accident and in a recent examination, and concluding that the plaintiff's limitations were significant and resulted from trauma causally related to the accident (see Perl v Meher, 18 NY3d 208[2011] Dixon v Fuller, 79 AD3d 94 [2d Dept. 2010] 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 of his right shoulder, cervical and lumbar spines 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 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]).

In addition, the plaintiff adequately explained the gap in treatment by submitting his own affidavit as well as the [*5]affirmation of Dr. Chang stating that no-fault had terminated his coverage (see Abdelaziz v Fazel, 78 AD3d 1086 [2d Dept. 2010] Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2d Dept. 2010] Domanas v Delgado Travel Agency, Inc., 56 AD3d 717 [2d Dept. 2008] Black v Robinson, 305 AD2d 438 [2d Dept. 2003]).

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

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

Dated: April 10, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.