Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion jointly filed on October 8, 2014, under motion sequence number two, by defendants Gray McEachern and Zammett L. Aultia (hereinafter the movants) for an order pursuant to CPLR 3212 granting summary judgment in their favor and dismissing the complaint on the basis that the plaintiff Yan Shakhnovskiy (hereinafter Shakhnovskiy) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

Notice of Motion

Attorney affirmation

Exhibits A-H

Affirmation in opposition ^[FN1]

Exhibits A-C

Reply affirmation

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross motion jointly filed on November 17, 2014, under motion sequence number five, by defendant The Salvation Army and Franklin A. Machado Davila (hereinafter the cross-movants) for the same relief on the same basis.

Notice of Cross Motion

Attorney affirmation

Exhibits A-I

Affirmation in opposition

Exhibits A-C

Reply affirmation

On May 8, 2013, Shakhnovskiy commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated June 28, 2013, defendants Gray McEachern and Zammett L. Aultia joined issue. By verified answer dated June 28, 2013, defendant Richard Hill joined issue. By verified answer dated July 16, 2013, defendants The Salvation Army and Franklin A. Machado Davila joined issue. On September 9, 2014, a note of issue was filed.

Shakhnovskiy has alleged in his complaint and bill of particulars that on February 25, 2012, at approximately 6:00 p.m., he was driving his car on I-278 East Verrazano/ Narrow Bridge in the vicinity of its intersection with Fingerboard Road in Richmond County, New York. At that date, time and location Zammet L. Aultia was operating a vehicle owned by Gary McEachern and Richard A. Hill was operating his own vehicle. Plaintiff claims that Hill and Aultia were negligent in the operation of their respective vehicles such that Hill struck the vehicle operated by Aultia which then in turn struck plaintiff's vehicle. Shakhnovskiy claims that the collision caused him to sustain serious physical injuries.

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 any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [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, 68 NY2d 320 at 324 [1986]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"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 (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]).

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; [*3]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 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 [2nd Dept 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, the moving and cross moving defendants have shared and relied on the same evidence. They submitted a copy of plaintiff's deposition transcripts and verified bill of particulars. They also submitted the affirmed report of Drs. Audrey Eisenstadt and Edward A. Toriello, an orthopedic surgeon and radiologist that they had retained to conduct an independent medical examination of the plaintiff.

Dr. Audrey Eisenstadt reviewed MRI studies taken of the plaintiff's cervical spine taken on March 22, 2012 and lumbar spine studies taken on April 5, 2012. Dr. Eisenstadt found a disc bulges and herniation in level C5-6 of the cervical spine and a disc bulge at the L5-S1 of the lumbar spine. Dr. Eisenstadt opined that the bulges and herniation were not caused by trauma but rather were due to degeneration.

Dr. Edward A. Toriello, an orthopedic surgeon, conducted an independent medical examination of the plaintiff on June 5, 2015. Dr. Toriello conducted range of motion testing of the plaintiff's cervical and lumber spine. He generally set forth his findings and compared those findings to what is normal and concluded in his affirmed report that plaintiff had full unrestricted range of motion. However, with regard to the straight leg raise test performed on the plaintiff's lumbar spine, Dr. Toriello only stated that the test was bilaterally full and pain free. He did not compare his finding to what is normal (Shirman v Lawal, 69 AD3d 838 [2nd Dept 2010] citing Walker v Public Adm'r of Suffolk County, 60 AD3d 757, 758 [2nd Dept 2009]).

By not comparing their findings to what is normal, the moving and cross moving defendants did not meet their burden of establishing that the plaintiff's injuries were not serious within the meaning of Insurance Law § 5102 (d).

Accordingly, the moving and cross moving defendants' motion must be denied regardless of the sufficiency of the plaintiff's opposing papers (Dowling v Valeus, 119 AD3d 834 [2nd Dept 2014] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Defendant Gray McEachern and Zammett L. Aultia's joint motion for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) is denied.

Defendant The Salvation Army and Franklin A. Machado Davila's joint motion for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) is denied.

The foregoing constitutes the decision and order of this court.

J.S.C.