Motion sequence numbers 1 and 3 are hereby consolidated for disposition

This is an action commenced by Orly Alchkifati (plaintiff) to recover monetary damages against Andrey Kojarev (Kojarev) and Olena Kuzmenko (Kuzmenko) (collectively, defendants) for personal injuries allegedly sustained by the plaintiff due to an automobile accident that occurred on July 24, 2014 on Avenue P at or near its intersection with East 5th Street in Brooklyn, New York. Plaintiff alleges that on the date of the alleged accident, her vehicle was traveling across Avenue P with a green light in her favor and while in the intersection of Avenue P and East 5th Street, her vehicle was struck on the right side by the vehicle owned by Kojarev and operated by Kuzmenko. Before the Court is a motion by plaintiff for an Order (1) granting summary judgment in her favor on the issue of liability; (2) striking defendants' Answer for their [*2]willful failure and refusal to appear for their depositions and produce discovery; and (3) setting the matter down for an immediate trial on the issue of damages only (motion sequence 1). Defendants are in opposition to the motion. Plaintiff submits a reply. Also before the Court is an Amended Notice of Motion by defendants for summary judgment, pursuant to CPLR 3212, dismissing the Complaint on the ground that the injuries claimed do not satisfy the "serious injury" threshold requirement of the New York Insurance Law §§ 5102(d) and 5104 (motion sequence 3). Plaintiff is in opposition to this motion.

In support of her motion for summary judgment on liability and to strike the defendants' Answer, plaintiff submits, inter alia, the verified pleadings; a copy of her Examination Before Trial (EBT) testimony dated October 20, 2015; two color photographs of plaintiff's vehicle after the accident; a copy of the Preliminary Conference Order and various correspondence between the parties' attorneys requesting that defendants' EBT be scheduled. In opposition, defendants submit Kuzmenko's sworn affidavit dated May 25, 2016 and their responses to the Preliminary Conference and Compliance Conference Orders.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Winegrad v NY Univ. Medical Cntr., 64 NY2d 851, 853 [1985]). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212[b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Zuckerman v City of NY, 49 NY2d 557, 562 [1980]).

When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625, 626 [1985]; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; CPLR 3212[b]).

A. Plaintiff's motion for summary judgment on liability

"There can be more than one proximate cause of an accident" (Jones v Vialva-Duke, 106 AD3d 1052, 1052 [2d Dept 2013], quoting Cox v Nunez, 23 AD3d 427, 428 [2d Dept 2005]). To prevail on a motion for summary judgment on the issue of liability, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault" (Derieux v Apollo NY City [*3]Ambulette, Inc., 131 AD3d 504, 504-505 [2d Dept 2015]; Zhu v Natale, 131 AD3d 607, 608 [2d Dept 2015]). "Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault" (id.; see Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055 [2d Dept 2012]). A driver who enters an intersection against a red light in violation of Vehicle and Traffic Law § 1111(d) is negligent as a matter of law (see McCourt v Wasilewski, 122 AD3d 693, 694 [2d Dept 2014]).

In support of her motion, plaintiff submits her EBT testimony wherein she testified that on the date of the accident, she was driving towards Avenue P, with a green light in her favor when her vehicle came in contact with a Ford vehicle (see plaintiff's exhibit, Alchkifati Tr. at 23, 24). Plaintiff stated that her vehicle was already in the intersection when she saw defendants' vehicle for the first time (id. at 26). Plaintiff further testified that when she first noticed the defendants' vehicle, it was stopped at a red light and the accident happened approximately 10 seconds thereafter (id. at 28).

However, in opposition, defendants raise a triable issue of fact via the submission of Kuzmenko's affidavit wherein she avers that on the date of the accident, she was traveling westbound on Avenue P and stopped for a red light on Avenue P at its intersection with Ocean Parkway (see defendant's exhibit 1). Kuzmenko stated that when the traffic light controlling her direction of travel turned green, she proceeded to drive west on Avenue P and as she drove she observed the traffic light on Avenue P and East 5th Street turn from red to green (id.). Kuzmenko stated that the traffic signal remained steady green as she approached and entered the intersection of East 5th street when her vehicle was suddenly struck by plaintiff's vehicle (id.). Kuzmenko avers that plaintiff's vehicle entered the intersection on East 5th Street against a red light thus causing the accident (id.). The Court finds that the conflicting testimony supports different conclusions regarding fault of the parties. As such, there triable issues of fact, which requires denial of the portion of plaintiff's motion seeking summary judgment on liability (see Goulet v Anastasio, 148 AD3d 783 [2d Dept 2017]; Fauvell v Samson, 61 AD3d 714 [2d Dept 2009]; Vehicle and Traffic Law § 1111; cf. Monteleone v Jung Pyo Hong, 79 AD3d 988 [2d Dept 2010]).

B. Plaintiff's motion to strike defendants' pleading

"A court may strike a pleading as a sanction if a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943 [2d Dept 2012] [internal quotation marks omitted]; see CPLR 3126; Carabello v Luna, 49 AD3d 679 [2d Dept 2008]). "To invoke the drastic remedy of striking an answer, it must be shown that a defendant's failure to comply with a disclosure order was the result of willful and contumacious conduct" (id., quoting Maignan v Nahar, 37 AD3d 557, 557 [2d Dept 2007]; see Bates v Baez, 299 AD2d 382 [2d Dept 2002]; Espinal v City of New York, 264 AD2d 806 [2d Dept 1999]; Moray v City of Yonkers, 76 AD3d 618 [2d Dept 2010]; Riccuiti v Consumer Prod. Servs., LLC, 71 AD3d 754, 755 [2d Dept 2010] ["Although actions should be resolved on the merits whenever possible, where the conduct of the resisting party is shown to be willful and contumacious, the striking of a pleading is warranted"]). "The willful and contumacious character of a party's conduct can be inferred from the party's repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures" (Tos, 91 AD3d at 944; Espinal, 264 AD2d at 806; Maignan, 37 AD3d at 557). It is well settled that the determination whether or not to strike a pleading lies within the sound discretion of the trial court (see Bates, 299 AD2d at [*4]382; CPLR 3126; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654, 655 [2d Dept 2010]).

In light of the strong public policy, which favors the resolution of actions on the merits (see Singer v Riskin, 137 AD3d 999, 1001 [2d Dept 2016] ["Public policy strongly favors the resolution of actions on the merits whenever possible"] [internal quotation marks omitted]; Krause v Lobacz, 131 AD3d 1128 [2d Dept 2015]; Brice v City of New York, 139 AD3d 888 [2d Dept 2016]; Adzer v Rudin Mgt. Co., 50 AD3d 1070 [2d Dept 2008]), the Court declines to strike defendants' Answer at this point in time. However, the Court grants the portion of plaintiff's motion, pursuant to CPLR 3124, compelling defendants to appear for depositions within 60 days of the entry of this Order. Failure to do so, shall result in an Order striking defendants' Answer (see CPLR 3126; Pugliese v Mondello, 67 AD3d 880, 881 [2d Dept 2009] ["The Supreme Court providently exercised its discretion in granting a conditional order striking the answer unless the defendant furnished the plaintiff with certain documents by a date certain"]).

C. Defendants' motion on Serious Injury

A party seeking damages for pain and suffering arising out of a motor vehicle accident must establish that he or she has sustained at least one of the nine categories of "serious injury" as set forth in Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230 [1982]). 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 loss]; permanent consequential limitation of use of a body organ or member [permanent consequential limitation]; significant limitation of use of a body function or system [significant limitation]; 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 [90/180].

The Court must determine whether, as a matter of law, plaintiff has sustained a "serious injury" under at least one of the claimed categories. "Serious injury" is a threshold issue, and thus, a necessary element of a plaintiff's prima facie case (Licari, 57 NY2d at 235; Insurance Law § 5104[a]). The serious injury requirement is in accord with the legislative intent underlying the No-Fault Law, which was enacted to "'weed out frivolous claims and limit recovery to significant injuries'" (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002], quoting Dufel v Green, 84 NY2d 795, 798 [1995]). As such, to satisfy the statutory threshold, the plaintiff is required to submit competent objective medical proof of his or her injuries (id. at 350). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (id.).

The issue of whether a claimed injury falls within the statutory definition of "serious injury" is a question of law for the Court, which may be decided on a motion for summary judgment (see Licari, 57 NY2d at 237). Where a defendant is the movant, the defendant, bears the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that plaintiff has not suffered a "serious injury" as defined in section 5102(d) (see Toure, 98 NY2d at 352; Gaddy v Eyler, 79 NY2d 955, 956-57 [1992]). Once the defendant has made such a showing, the burden shifts to the plaintiff to submit prima facie evidence, in admissible form, rebutting the presumption that there is no issue of fact as to the threshold question (see Franchini v Palmieri, 1 NY3d 536, 537 [2003]; Rubensccastro v Alfaro, 29 AD3d 436, 437 [1st Dept 2006]).

"In cases such as the present one, 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" (Grossman v Wright, 268 AD2d 79, 83-84 [2d Dept 2000]). "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" (id.; see Gaddy v Eyler, 79 NY2d 955 [1992]). The plaintiff must present objective evidence of the injury. The mere parroting of language tailored to meet statutory requirements is insufficient (see Grossman, 268 AD2d at 84). Further, a plaintiff's subjective claim of pain and limitation of motion must be sustained by verified objective medical findings, which shall be based on a recent examination of the plaintiff (see id.; Kauderer v Penta, 261 AD2d 365 [2d Dept 1999]).

The 90/180 category requires a demonstration that plaintiff has been unable to perform substantially all of his or her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury (see Licari, 57 NY2d at 236). The words "substantially all" mean that the person has been "curtailed from performing his usual activities to a great extent rather than some slight curtailment" (id.).

Here, the complete record before the Court indicates that there are conflicting medical reports submitted by the parties which raise triable issues of fact as to whether plaintiff sustained serious injuries within the meaning of Insurance Law § 5102(d) (see Pommells v Perez, 4 NY3d 566, 576 [2005]; see also Wilcoxen v Palladino, 122 AD3d 727, 728 [2d Dept 2014] [finding that "in light of the conflict expert medical opinions submitted by the parties, the Supreme Court properly denied the defendants' motion for summary judgement dismissing the complain..."]; Garcia v Long Island MTA, 2 AD3d 675, 675 [2d Dept 2013]). Defendants submit the affirmed orthopedic report of Dr. Edward A. Toriello, M.D., dated December 16, 2015, wherein Dr. Toriello objectively concluded that plaintiff does not suffer from range of motion limitations to her cervical, thoracic and lumbar spine, her right and left shoulders, her right and left elbows and right and left wrist and hands, right and left hips (see Amended Notice of Motion, exhibit H at 2, 3). Dr. Toriello further concluded that "the claimant reveals evidence of a resolved cervical strain, resolved left index finger contusion, resolved left shoulder contusion, resolved hip contusions, resolved left elbow contusion and resolved low back train" (id. at 4). Dr. Toriello also opined that plaintiff has no disability and is able to return to normal activities of daily living without restriction (id.).

However, in opposition, plaintiff submits, inter alia, the affirmed neurological report of Dr. Irving Friedman, M.D., dated June 1, 2016 wherein Dr. Friedman objectively concluded that plaintiff's "cervical flexion and extension were guarded to 22 degrees out of 45. Cervical rotation was guarded to 45 degrees out of 90, i.e. diffuse 50% deficit at the cervical spine with passive and active range of motion" (see plaintiff's affirmation in opposition, exhibit A at 2). Similarly, Dr. Friedman found limitation in plaintiff's paralumbar regions (forward flex 60/90; straight leg raise 60/90). Additionally, Dr. Friedman concluded that plaintiff "remains with a significant and painful disability" and that the "above deficits are directly and causally related to the injuries sustained on July 24, 2014" (id. at 5). Plaintiff also attached Dr. Joseph Mazella's, affidavit dated January 6, 2017 wherein Dr. Mazella concluded that plaintiff suffered from limitations in range of motion to both her cervical and lumbar spine (see id, exhibit D, E).

However, the Court finds that defendants have sustained the burden of proof with regard to the 90/180 category. A defendant can establish the nonexistence of a serious injury under 90/180 absent medical proof by citing to evidence, such as plaintiff's own testimony, [*5]demonstrating that plaintiff was not prevented from performing all of the substantial activities constituting his usual and customary daily activities for the prescribed period (see Copeland v Kasalica, 6 AD3d 253, 254 [1st Dept 2004]). Here, plaintiff's own testimony establishes that there is no serious injury under 90/180 as she testified that in the six months following the accident, though limited in some respects, she continued her duties as a stay at home mom(see plaintiff's exhibit, Alchkifati Tr. at 70). Plaintiff testified that as a result of the accident, she had difficulty running (id. at 72) and exercising (id. at 75) and she could not perform household chores like mop the floor or use her hands for a "stretched" amount of time, or do laundry (id. at 76, 77). Thus, defendants have submitted evidence demonstrating prima facie that plaintiff did not sustain a serious injury under the 90/180 category (see McFarlane v Klein, 131 AD3d 1139 [2d Dept 2015]; Lanzarone v Goldman, 80 AD3d 667, 669 [2d Dept 2011]; Jean v Labin-Natochenny; 77 AD3d 623 [2d Dept 2010]). In opposition, plaintiff fails to raise a triable issue of fact as to the 90/180 category.

Accordingly it is hereby,

ORDERED that the portion of the motion by plaintiff for summary judgment on the issue of liability is denied; and it is further,

ORDERED that the portion of the motion by plaintiff for an Order pursuant to CPLR 3126 striking defendants Andrey Kojarev and olena Kuzmenko's Verified Answer dated March 27, 2015, is denied except for the portion seeking an Order, in the alternative, compelling defendants to appear for depositions in this action; and it is further,

ORDERED that the defendants shall appear for depositions in this action within 60 days from the entry of this Order; and it is further,

ORDERED that defendants Andrey Kojarev and olena Kuzmenko's failure to appear for deposition within 60 days shall result in defendants' Answer being stricken; and it is further,

ORDERED that defendants' motion for summary judgment on the issue of serious injury is denied except as to plaintiff's claim under the 90/180 category of New York Insurance Law § 5102(d), which is dismissed; and it is further,

ORDERED that counsel for defendants is directed to serve a copy of this Order with Notice of Entry upon the plaintiff.

This constitutes the Decision and Order of the Court.