Recitation in accordance with CPLR 2219(a) of the papers considered on the joint notice of motion of defendants Doukara Kadi and Kani Daco (hereinafter the defendants or movants), filed on July 13, 2016, for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint on the grounds that plaintiff Samuel Rossi (hereinafter Rossi) did not suffer a serious injury as defined in Insurance Law § 5102(d).

On December 10, 2014, plaintiff commenced the instant action for damages for personal injuries by electronically filing a summon and verified complaint with the Kings County Clerk's office (KCCO). On December 15, 2014 plaintiff filed an amended verified complaint with the KCCO. On February 26, 2015 plaintiff filed a second amended verified complaint with the KCCO. By joint verified answer dated April 21, 2015, the defendants joined issue. On February 22, 2016, Plaintiff filed a note of issue.

Plaintiff's complaint and verified bill of particulars allege that on July 18, 2013 at approximately 12:30 p.m., while driving his vehicle in the vicinity of Blake Avenue and Van Sinderen Street in Kings County, New York, and while stopped, he was struck in the rear by a vehicle owned by Doukara Kai and operated by Kani Daco due to Kani Daco's negligent operation of his vehicle (hereinafter the subject accident). Plaintiff further claims that the collision caused him to sustain serious injuries to his cervical spine and left shoulder.

The defendants met their prima facie burden of showing 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, 956—957 [1992]. The defendants submitted the affirmed reports of Drs. Alla Mesh, a board certified neurologist and Richard A. Weiss, a board certified orthopaedic surgeon who conducted their respective medical examinations of Rossi on December 15, 2015. Collectively, they opined, among other things, that Rossi had a normal neurologic examination and normal range of motion of his cervical spine and left shoulder.

The defendants submitted competent medical evidence establishing, prima facie, that the alleged injury to the plaintiff's cervical spine and left shoulder did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). (see Staff v. Yshua, 59 AD3d 614 [2nd Dept 2009]).

Defendants also submitted plaintiff's verified bill of particulars, among other things, to demonstrate that the plaintiff did not suffer a serious injury under 90/180 category of Insurance Law 5102(d). Plaintiff's verified bill of particulars alleges that he was confined to bed for ten days; that he was confined to his house and incapacitated from employment from July 18 to September 30, 2013; and that he was incapacitated from household duties from July 18 to August 31, 2013. Defendants used Rossi's admission in his verified bill of particulars to demonstrate that his alleged injuries did not prevented him from performing "substantially all" of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (see Ciorda v Luchian, 54 AD3d 708 [2nd Dept 2008]).

In opposition the plaintiff submitted, among other things, the affirmed reports of Dr. Barry Katzman, his treating orthopedic surgeon. Dr. Katzman conducted range of motion testing [*2]on the defendant's left shoulder. Dr. Katzman found that Rossi had range of motion restrictions in forward flexion in which normal was 180 degree and Rossi's range of motion was 110 degree. Dr. Katzman repeated the range of motion testing on August 19, September 16, and October 21, 2013 with the same findings of forward flexion restrictions on each occasion. He also conducted range of motion testing on June 6, 2016 at which time plaintiff's range of motion had improved from 110 to 120 degrees in forward flexion. Dr. Katzman attributed the restriction to a a left shoulder partial cuff tear revealed by an MRI study. He also opined that the injury was caused by the subject accident. Rossi's opposition papers raised a triable issue of fact as to whether he sustained a serious injury to his cervical spine and left shoulder (see Perl v Meher, 18 NY3d 208, 218—219 [2011]). Accordingly defendants' motion for summary judgment dismissing the complaint must be denied.

Defendants Doukara Kadi and Kani Daco's joint motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint on the grounds that Samuel Rossi did not suffer a serious injury as defined in Insurance Law § 5102(d) is denied.

The foregoing constitutes the decision and order of this Court.