The following papers, numbered 1-4 were considered on this motion for summary judgment:

Plaintiff Reginald Jackson brings this action to recover damages for personal injuries he allegedly sustained in connection with a motor vehicle accident on June 20, 2014 (Subject Accident). During the Subject Accident, plaintiff alleges that he was struck by a motor vehicle owned and operated by defendant Pirooz Soltanizadeh. Plaintiff alleges that he sustained serious injuries as a result of the Subject Accident due to defendant's negligence.

Defendant now brings the instant motion for summary judgment, pursuant to CPLR § 3212, seeking dismissal of plaintiff's complaint on the basis that plaintiff has failed to make out a prima facie case of serious injury pursuant to Insurance Law § 5102(d). Plaintiff opposes defendant's motion, and defendant replies.

"[I]n any action by...a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle...there shall be no right of recovery for non-economic loss, except in the case of a serious injury". Insurance Law § 5104. Accordingly, the court must consider the threshold inquiry of whether plaintiff suffered serious injuries within the meaning of Insurance Law § 5102(d). Such statute 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; 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."

Insurance Law § 5102(d).

The standards for summary judgment are well settled. "In determining a motion for summary judgment where the issue is whether the plaintiff suffered serious injury,...[t]he initial burden is on defendants to present evidence, in competent form, showing that plaintiff has no cause of action", Cassagnol v Williamsburg Plaza Taxi Inc., 234 AD2d 208, 209 (1st Dep't 1996)(internal quotations omitted), and "that the injuries sustained by plaintiff are not serious". Style v Joseph, 32 AD3d 212, 214 (1st Dep't 2006)(internal quotations omitted). Despite the sufficiency of the opposing papers, the failure to make such a showing requires denial of the motion. See Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. See Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 (1st Dep't 1992), citing Assaf v Ropog Cab Corp, 153 AD2d 520, 521 (1st Dep't 1989). The court's role is "issue-finding, rather than issue-determination". Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [*3](1957)(internal quotations omitted).

Here, defendant's motion for summary judgment is denied as triable issues of fact exist as to whether plaintiff sustained a serious injury as defined by Insurance Law § 5102(d). While defendant alleges that plaintiff has failed to make out a prima facie case of serious injury, defendant failed to satisfy his initial burden, as movant, to establish that plaintiff's injuries are not serious. In support of defendant's motion, only an attorney's affirmation by John H. Lee, defendant's attorney, has been supplied. An affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. See Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1st Dep't 1981), aff'd 54 NY2d 715 (1981). Such affirmation does not satisfy the requirement of tender of evidentiary proof in admissible form. See Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979). It is well settled that a "bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing." Zuckerman v City of New York, 49 NY2d 557, 563 (1980).

Moreover, in support of their motion, defendant proffers, inter alia, the medical report of Dr. Mansukhani, dated July 30, 2014. Dr. Mansukhani reports on, inter alia, plaintiff's range of motion of his cervical spine, finding that plaintiff's flexion is 40 degrees with 50 degrees being normal, extension is 40 degrees with 60 degrees being normal, and left and right rotation is 65 degrees with 80 degrees being normal. Dr. Mansukhani measured plaintiff's range of motion of his lumbar spine and found plaintiff's flexion was 40 degrees with 90 degrees being normal, extension was 20 degrees with 30 degrees being normal, and right bending was 30 degrees and left bending was 25 degrees with 40 degrees being normal. Dr. Mansukhani's report further states that, if plaintiff's medical history is accurate, "there is a causal relationship between [plaintiff's] motor vehicle accident on June 20, 2014 and his...complaints". Notice of Motion, Exh. F. Defendant also proffers the independent medical evaluation prepared by Dr. Edward Mills, dated December 8, 2015. Dr. Mills reports on, inter alia, plaintiff's range of motion of his cervical spine, finding that plaintiff's flexion is 40 degrees with 50 degrees being normal, extension is 50 degrees with 60 degrees being normal, left and right bending is 35 degrees with 45 degrees being normal, and left and right rotation is 70 degrees with 80 degrees being normal. Dr. Mills measured plaintiff's range of motion of his lumbar spine and found plaintiff's flexion was 60 degrees with 60 degrees being normal, extension was 25 degrees with 25 degrees being normal, and right and left lateral bending was 25 degrees with 25 degrees being normal. Dr. Mills's report further states that his "orthopaedic examination reveals no objective correlative evidence of a casually related disability." Notice of Motion, Exh. H. The reports of Drs. Mansukhani and Mills lack any probative value regarding whether plaintiff sustained a serious injury, as there are discrepancies in the experts' affirmation regarding plaintiff's ranges of motion and, more particularly, what constitutes normal ranges of motion, such that an issue of fact was created. See Collado v Pineda, 31 AD3d 684, 685 (2nd Dep't 2006).

Drawing all reasonable inferences in favor of plaintiff, defendant is not entitled to summary judgment as there is conflicting evidence as detailed above. Defendant failed to sustain his prima facie case that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102(d) and thus, is not entitled to summary judgment as a matter of law.

Accordingly, it is

ORDERED that defendant's motion to for summary judgment is denied; and it is further

ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendant with notice of entry; and it is further

ORDERED that this case is adjourned to 5/10/16 at 9:30am for trial.

This constitutes the decision/order of the Court.