RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Defendant moves for summary judgment pursuant to CPLR 3212 on the ground that plaintiff did not sustain "serious injuries" as defined by section 5102(d) of the New York State Insurance law.

Plaintiff commenced the instant action to recover for serious personal injuries allegedly sustained as a result of an April 3, 2010 motor vehicle incident. The alleged injuries include a herniated of the cervical and a bulging disc of the lumbar spine, and cervical and lumbar radiculopathy.

To show entitlement to summary judgment, defendant must prove that plaintiff did not sustain a serious personal injuries within the meaning of Section 5102(d) of the Insurance Law (see Toure v Avis Rent A Car Systems, Inc. 98 NY2d 345 [2002]) which defines serious injury as that "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 or use of a body organ, or member; significant limitation of use of body function or system; or 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 and eighty days immediately following the occurrence of the injury or impairment."

Once a defendant has made out a prima facie showing that the plaintiff has not sustained a "serious injury," the burden shifts to the plaintiff to provide evidence in admissible form to demonstrate that a triable issue of fact exists that the plaintiff has sustained such an injury. (see Grossman v Wright, 268 AD2d 79 [2D Dept 2000]).

Plaintiff herein contends he sustained serious injuries under Section 5102(d), because the injuries have resulted in a permanent consequential limitation or loss of use of a bodily organ or member; or, a significant limitation of a bodily function or system; or, constitute a medically determined injury which has impaired plaintiff's ability to perform his customary activities in excess of 90 out of 180 days immediately following the incident.

Defendant, however, argues that plaintiff's deposition transcript establishes that he did not sustain serious injuries, as he admittedly he returned to work "the next day-the next week" following the incident. Plaintiff further testified that he obtained physical therapy for several months and stopped the treatment because he felt "good" and found "no reason" to continue treatment.

Defendant further submits sworn reports of defendant's expert orthopedist and expert neurologist who examined the plaintiff on February 7, 2014 and February 24, 2014 respectively, which defendant submits as further proof of plaintiff's failure to meet the "serious injury" threshold. Both experts contend that plaintiff exhibited normal range of motion of the cervical and lumbar spine at all levels and had no tenderness or disability.

In opposition to the motion, plaintiff argues that defendant failed to establish its prima facie entitlement to summary judgement, and accordingly, the court should not consider the sufficiency of plaintiff's opposition papers and must outright deny the motion. (See Scotti v Boutureira, 8 AD3d 652 [2d Dept. 2004]).

The basis of plaintiff's argument is that defendant's expert reports are baseless and irrelevant as they examined the plaintiff approximately four years following the date of the alleged incident. As such, the experts have no basis to render an opinion on plaintiff's condition 90 days within the first 180 days following the incident or conclude that plaintiff had not sustained a medically determinable injury during this period.

Plaintiff's argument however lacks merit, as although defendant's experts did not examine plaintiff during the first 180 days post incident, defendant may demonstrate lack of serious injury under the 90/180 rule based on plaintiff's deposition transcript. (see Martin v Ieni, 108 AD3d 656 [2d Dept, 2013]). The Court further notes that as plaintiff commenced the instant action two years following the alleged incident, it would have been impossible for defendants' experts to have examined the plaintiff within 180 days post-accident.

Accordingly, defendant established its prima facie burden that the plaintiff has not sustained a "serious injury" within the meaning of the insurance law, thus shifting the burden to the plaintiff to raise a triable factual issue.

In opposition to the motion, plaintiff's counsel submits an affidavit from the plaintiff, stating that following the subject incident, he has been unable to work as many days or hours as he had prior to the alleged incident, or maintain a steady job.

Plaintiff's affidavit, however, not only contradicts plaintiff's deposition transcript, but is further vague and conclusory. While plaintiff claims after the incident he works less hours per day and days per week, he does not specify the number of hours, or days per week he worked prior or subsequent to the date of the incident. Plaintiff further fails to submit any corroborating evidence to substantiate his claim that post incident, because of the alleged injuries sustained, he has been unable to work the same hours or days which he was working pre-incident.

Moreover, had plaintiff's affidavit not been vague, conclusory, or contradictory to his deposition testimony, defendant's motion would still be granted as, plaintiff fails to submit any medical evidence, affirmation or an affidavit from a qualified medical professional to substantiate the nature and causation of plaintiff's injuries and disability, or whether plaintiff sustained any medically determinable injury which prevented him from performing his customary activities within the 90/180 days post incident. (see, Sante-Aime v Ho, 274 AD2d 569 [2000]), the complaint was dismissed as plaintiff did not submit any medical evidence to support his claim that he sustained serious injuries inducing his inability to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the incident).

As plaintiff's opposition is devoid of medical substantiation, it is insufficient to raise a triable issue of fact (see Watt v Eastern Investigative Bureau, 273 AD2d 226 [2d Dept, 2000]). Based on the foregoing, defendant's motion for summary judgment is granted and the action is dismissed.