In this action for personal injuries stemming from an automobile accident, defendants RAFAEL CONTIN (Contin) and MARINO MORA-MARTINEZ (Martinez) move for an order granting them summary judgment, thereby dismissing plaintiff NAIXSHA MOREL's (Morel) complaint on grounds that she failed to sustain a serious injury as defined by the Insurance Law. Morel opposes the instant motion asserting that Contin and Martinez fail to establish prima facie entitlement to summary judgment and that nevertheless, questions of fact as to whether she sustained a serious injury, preclude summary judgment in their favor.

For the reasons that follow hereinafter, Contin and Martinez' motion is granted.

The instant action is for personal injuries allegedly sustained in a motor vehicle accident. Morel's complaint alleges the following. On June 6, 2011, Morel, while a passenger in a vehicle owned by Contin and operated by Martinez was involved in a motor vehicle accident when the vehicle within which she was a passenger came into contact with a vehicle owned by defendants THE CITY OF NEW YORK (the City) and the NEW YORK CITY POLICE DEPARTMENT and operated by defendant HUBERT VANDEWERD (TAX ID. 0947865). Morel alleges that the accident was the result of defendants' negligence in the operation and maintenance of their respective vehicles and that as a result of such negligence she sustained injuries. Within her bill of particulars, Morel alleges that she sustained the a host of injuries, including a grade III tear of the posterior horn of the medial meniscus in her right knee, disc bulges in her cervical spine at C2-C3 and C6-C7, and sprains and strains to her lumbar spine. Morel alleges that the foregoing injuries are serious as defined by Insurance Law § 5102(d), inasmuch as she sustained a (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; and/or (4) a medically determined injury or impairment of a non-permanent nature which prevented her from performing all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following her accident.

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient [*2]admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005] Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009]).

Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. As noted by the Court of Appeals,

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case

Moreover, when deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v Talman (278 AD2d 811, 811 [4th Dept 2000]),

[s]upreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial

Insurance Law § 5104(a), also known as the "no-fault law," by design and intent, severely limits the number of personal injury law suits brought as a result of motor vehicle accidents (Licari v Elliott, 57 NY2d 230, 236 [1982] ["There can be little doubt that the purpose of enacting an objective verbal definition of serious injury was to significantly reduce the number of automobile personal injury accident cases litigated in the courts, and thereby help contain the no-fault premium." (internal quotation marks omitted)]). Thus, because any injury not falling within the statute's definition of "serious injury" is minor, it should not be accorded a trial by jury, and, therefore, "[i]t is incumbent upon the court to decide in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute" (id. at 237 ["While it is clear that the Legislature intended to allow plaintiffs to recover for non-economic injuries in appropriate cases, it had also intended that the court first determine whether or not a prima facie case of serious injury has been established which would permit a plaintiff to maintain a common-law cause of action in tort."]). As promulgated by the Court of Appeals in Licari,

plaintiffs in automobile cases no longer have an unfettered right to sue for injuries sustained. Thus, to the extent that the legislature has abrogated a cause of action, the issue is one for the court, in the first instance whether plaintiff has a cause of action to assert within the meaning of the statute

A defendant seeking summary judgment on grounds that plaintiff's injuries are not serious under the insurance law must establish that plaintiff's injuries are not serious as defined by the Insurance Law (Franchini v Palmieri, 1 NY3d 536, 537 [2003] Brown v Achy, 9 AD3d 30, 31 [1st Dept 2004] Rodriguez v Goldstein,

182 AD2d 396, 397 [1st Dept 1992]). A defendant can meet this burden thereby establishing prima facie entitlement to summary judgment in a myriad of different ways. Defendant can negate the existence of serious injury using plaintiff's own pleadings (Fortune v Sacks & Sacks, 272 AD2d 277, 277 [1st Dept 2000] Craft v Brantuk, 195 AD2d 438, 438 [2d Dept 1993] Grier v Kuhn, 187 AD2d 559, 560 [2d Dept 1992]["In this case, an examination of the report of the plaintiff's chiropractor, the verified complaint, the plaintiff's verified bill of particulars, the plaintiff's affidavit, and the affirmation of the plaintiff's physician, clearly show that there is absolutely no merit to the plaintiff's claims of a serious injury as defined in Insurance Law § 5104" (internal citation marks omitted)]), by submitting objective medical evidence negating the existence of a serious injury (Black v Robinson, 305 AD2d 438, 439 [2d Dept 2003] Junco v Ranzi, 288 AD2d 440, 440 [2d Dept. 2001] Papadonikolakis v First Fid. Leasing Group, 283 AD2d 470, 470-471 [2d Dept 2001]), or by other evidence which demonstrateS the absence of a serious injury (Lowe v Bennett, 122 AD2d 728, 729 [1st Dept 1986], affd 69 NY2d 700 [1986], such as plaintiff's own deposition testimony (Arjona v Calcano, 7 AD3d 279, 280 [1st Dept 2004]). [*4]

With respect to objective medical evidence negating the existence of a serious injury, the tests relied upon must be specified within defendant's doctor's medical report (Janco at 440), and what is required is "objective proof such as X-rays, MRIs, straight-leg or Laseque tests, and any other similarly-recognized tests or quantitative results based on. . .[an] examination" (Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]). Range of motion testing is an objective measure of the presence or absence of injury (Kraemer v Henning, 237 AD2d 492, 493 [2d Dept 1997] Zalduondo v Lazowska, 234 AD2d 455, 455-456 [2d Dept 1996]), and when used, the doctor must specify plaintiff's range of motion and compare the same to normal (Bray v Rosas, 29 AD3d 422, 423 [1st Dept 2006] [Court held that the failure of a defendant's doctor to quantify plaintiff's range of motion while concomitantly failing to compare the same to normal constituted a failure to establish prima facie entitlement to summary judgment "thereby leaving the court to speculate as to the meaning of those figures."] Kelly v Rehfeld, 26 AD3d 469, 470 [2d Dept 2006] Spektor v Dichy, 34 AD3d 557, 558 [2d Dept 2006] Webb v Johnson, 13 AD3d 54, 55 [1st Dept 2004]).

While generally, defendant's medical evidence must be in admissible form, namely sworn by affidavit (Shinn v Catanzaro, 1 AD3d 195, 197 [1st Dept 2003] Rodriguez at 397; Pagano v Kingsbury, 182 AD2d 268, 270 2d Dept 1992]), a defendant can nevertheless establish the lack of serious injury by using plaintiff's own unsworn medical records, and otherwise inadmissible medical reports from plaintiff's own doctors (Newton v Drayton, 305 AD2d 303, 304 [1st Dept 2003] Pagano at 271).

Once defendant meets the burden of prima facie entitlement to summary judgment, by establishing that plaintiff has not suffered a serious injury, summary judgment is warranted unless plaintiff can establish the existence of a serious injury. To that end, plaintiff must establish that the injuries alleged are the result of the accident claimed and that the limitations alleged are the result of those injuries (Noble v Ackerman, 252 AD2d 392, 394-395 [1st Dept 1998]). Plaintiff's proof establishing serious injury, medical or otherwise, must not only be admissible, but it must also be objective (Toure v Avis Rent A Car Systems, Inc., 98 NY2d 345, 350 [2002] Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Blackmon v Dinstuhl, 27 AD3d 241, 242 [1st Dept 2006] Thompson v Abassi, 15 AD3d 95, 97 [1st Dept 2005]; Shinn at 198; Andrews v Slimbaugh, 238 AD2d 866, 867-868 [2d Dept 1997] Zoldas v Louise Cab Corporation, 108 AD2d 378, 382 [1st Dept 1985]). Significantly, plaintiff's proof must also demonstrate the existence of a serious injury contemporaneous with the accident alleged (Blackmon at 242; Thompson at 98 [Court held that the failure by plaintiff's doctor to provide objective proof of injury contemporaneous with the accident was fatal and was not cured by same doctor's finding of injury, with objective evidence, two and one half years later.); Nemchyonok v Ying, 2 AD3d 421, 421 [2d Dept 2003] Pajda v Pedone, 303 AD2d 729, 730 [2d Dept 2003] Jimenez v Kambli, 272 AD2d 581, 583 [2d Dept 2000]). Such contemporaneous medical evidence, however, can be an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or "an expert's qualitative assessment of a plaintiff's condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (Toure at 350; see also Perl v Meher, 18 NY3d 208, 218 [2011] ["We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."]). When defendant, in moving for summary judgment on the issue of serious injury, relies on plaintiff's unsworn MRI reports (Bent v Jackson, 15 AD3d 46, 47 [1st Dept 2005] Toledo v A.P.O.W. Auto [*5]Repair/Towing, 307 AD2d 233, 234 [1st Dept 2003]) or unsworn versions of plaintiff's medical records (Pech v Yael Taxi Corp., 303 AD2d 733, 733-734 [2d Dept 2003] Raso v Statewide Auto Auction, Inc., 262 AD2d 387, 387-388 [2d Dept 1999), plaintiff can rely on those very same records, even if unsworn, in opposition to defendant's motion.

Here, Contin and Martinez demonstrate prima facie entitlement to summary judgment insofar as the evidence tendered in support of their motion establishes that Morel did not sustain a serious injury under any of the categories pleaded as a result of the accident alleged.

With regard to the permanent categories of injury, the first three alleged by Morel in her bill of particulars, the sworn affirmation from Alan Crystal (Crystal), an orthopedist, establishes that upon his examination of Morel on July 25, 2013, and his review of her medical records, Morel did not sustain a permanent injury as a result of the accident alleged. With respect to the knee and lumbar injuries claimed, Crystal performed a myriad of range of motion tests, listing Morel's range of motion in those body parts, listing what constitutes normal range of motion, and asserting that Morel's range of motion was within what constitutes normal. Based on his examination Crystal concludes that Morel is fully functional and able to perform all normal and usual daily activities, without restriction. Thus, Contin and Martinez establish prima facie entitlement to summary judgment for this reason alone (Black at 439; Junco at 440; Papadonikolakis at 470-471).

Additionally, with respect to Morel's meniscus tear in her right knee, which required surgery, Crystal also concluded that any injury to that knee could not have been sustained during the accident alleged. Crystal so opines based on his review of Morel's MRI study to her right knee performed on June 24, 2011, which study, according to him, failed to indicate any edema to the knee and its structures. This, Crystal concludes, is evidence that Morel did not sustain an impact to her knee during the accident and, thus, did not injure the same at that time. Crystal also concludes, upon a review of Morel's operative report detailing an arthroscopy to her knee on August 15, 2011, that the fraying to her meniscus found during the procedure is not a traumatic process. Thus, according to Crystal, further evidence that the injury to Morel's knee was not caused by the instant accident. Similarly, with respect to Morel's cervical and spine injuries, Crystal, after reviewing EMG studies performed upon Morel's cervical and lumbar spine on July 13, 2011, which studies evinced no ridiculopathy, concludes that as early ast July 2011, Morel had no injury to her spine. Since it is well settled that a defendant who negates causation with respect to the injuries claimed establishes prima facie entitlement to summary judgment (Pommells v Perez,4 NY3d 566, 580; Franchini at 537; Mullings v Huntwork, 26 AD3d 214, 216 [1st Dept 2006]), Conti and Martinez also establish prima facie entitlement to summary judgment with respect to the permanent categories of injury insofar as Crystal establishes that Morel's injuries were not caused by the accident alleged.

With respect to the non-permanent category of injury, the 90/180 category, based on the foregoing, namely that the accident alleged did not cause any injury to Morel's spine nor the alleged injury to her right knee, Contin and Martinez also establish prima facie entitlement to summary judgment.

Morel's opposition, fails to raise an issue of fact sufficient to preclude summary judgment in favor of Contin and Martinez. First, Morel fails to sufficiently rebut Crystal's opinion that Morel's knee injury was not caused by the instant accident. It is well settled that when a defendant tenders evidence negating causation, meaning evidence establishing that the injuries alleged are not related to the accident at issue, plaintiff's failure to rebut a defendant's prima facie showing that the injuries [*6]sustained by plaintiff pre-dated the accident or were caused by some other event or condition warrants dismissal of the action (Pommells at 574-575; Franchini at 537; Marsh v City of New York, 61 AD3d 552, 552 [1st Dept 2009]). In order to rebut defendant's assertion as to causation, plaintiff must proffer medical evidence specifically addressing and rebutting the assertion made by defendant's expert (Marsh at 552; Kaplan v Vanderhans, 26 AD3d 468, 469 [2d Dept 2006] Giraldo v Mandanici, 24 AD3d 419, 420 [2d Dept 2005]). The exception to the foregoing, as promulgated by Linton v Nawaz (62 AD3d 434, 440, 441 [1st Dept 2009], affd 14 NY3d 821 [2010]), is when defendant's negation of causation is merely that plaintiff's injuries are preexisting and degenerative, and such opinion is based solely upon a review of plaintiff's medical records. When such is the case, in order to rebut defendant's claim on causation, plaintiff need only tender medical evidence demonstrating that the injuries alleged are causally related to the accident and need not specifically address the claims made by defendant's expert (62 AD3d 434, 443). Here, however, Crystal's opinion is more than a mere claim of degeneration which preexisted the instant accident. Instead, Crystal asserts that the knee injury could not have been sustained during the crash alleged because there was no evidence of trauma. Thus, Morel was required to have her expert specifically rebut Crystal's claim. While Garza attempts to rebut Crystal's claim, his affirmation falls short because it merely rebuts Crystal's claim of degeneration with regard to the knee, which while part of his opinion on causation, was not at all the thrust or salient portion of his opinion.

Second, at least with respect to the permanent categories of serious injury alleged, and more specifically, the spine injury, Morel fails to raise an issue of fact because she fails to explain an almost four year gap in medical treatment.

An unexplained gap in medical treatment warrants dismissal of plaintiff's case (Pommells at 574; Brown v City of New York, 29 AD3d 447, 448 [1st Dept 2006] Vasquez v Reluzco, 28 AD3d 365, 366 [1st Dept 2006] Rivera v Benaroti, 29 AD3d 340, 342 [1st Dept 2006] Milazzo v Gesner, 33 AD3d 317, 318 [1st Dept 2006] Colon v Kempner, 20 AD3d 372, 374 [1st Dept 2005]). When it is alleged that the gap or cessation of treatment was precipitated by the exhaustion of medical treatment, meaning that no further treatment would have benefitted the plaintiff, explanations for such gaps must be proffered by doctors within medical reports or affidavits (Farozes v Kamran, 22 AD3d 458, 458 [2d Dept 2005] Ali v Vasquez, 19 AD3d 520, 521 [2d Dept 2005] Hernandez v Taub, 19 AD3d 368, 368 [2d Dept 2005]). Here, the evidence establishes that after August 15, 2011, when Morel had surgery, she ceased medical treatment. While Morel, within an affidavit submitted in opposition to the instant motion, avers that "[a]fter my treatment, it was determined that further treatment would not alleviate my pain, " she nevertheless fails to submit any medical evidence corroborating that assertion. Garza's affirmation not only fails to address Morel's cessation of treatment, but is also bereft of any explanation for the same.

To the extent that the instant motion is granted because movants established, beyond factual dispute, that Morel did not sustain a serious injury, the Court, upon a search of the record, also grants summary judgment in favor of all other defendants (Nelson v Distant, 308 AD2d 338, 340 [1st Dept 2003]). It is hereby

ORDERED that Morel's complaint be dismissed as against all defendants, with prejudice. It is further

ORDERED that Contin and Martinez serve a copy of this Decision and Order with Notice of Entry upon all parties within thirty (30) days hereof. [*7]

This constitutes this Court's decision and Order.

Dated : April 24, 2014

Bronx, New York

______________________________MITCHELL J. DANZIGER, J.S.C.