The following e-filed documents, listed by NYSCEF document number (Motion 001) 1, 4, 8, 9, 16, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 47, 48, 49, 50, were read on this motion for SUMMARY JUDGMENT.

This personal-injury action arises out of a collision between plaintiff Astrid E. Russo's vehicle and a Metropolitan Transportation Authority bus driven by defendant Muniru A. Issa. Plaintiff has contended that she sustained serious injuries in that accident within the meaning of Insurance Law § 5102 (d). Defendants now move for summary judgment. The motion is denied.

On October 19, 2015, an MTA bus collided with Russo's motor vehicle near the intersection of 48th Street and the Brooklyn Queens Expressway in Queens. Russo complained of pain to her neck and lower back and was taken to the emergency room at Wyckoff Hospital, where she was examined and released.

A few days later, Russo's symptoms and pain worsened, and she sought further medical attention. On October 27, 2015, her treating physician conducted orthopedic and range-of-motion tests of plaintiff. According to the testing reports, the range of motion of Russo's cervical spine, lumbar spine, left shoulder, and left knee were significantly restricted with pain.

On August 18, 2016, August 31, 2016, September 25, 2016, and October 9, 2016, Russo's treating physician took MRIs of her cervical spine, her lumbar spine, her left shoulder, and her left knee. Her treating physician concluded that all four MRIs indicated that her injuries were causally related to the October 2015 accident, rather than to degenerative conditions.

On November 12, 2019, during a visit with her doctor, Russo still complained of neck [*2]pain and stiffness, back pain with stiffness, left shoulder pain, and left knee pain. The treating physician performed another range-of-motion test and found that Russo continued to suffer from significant limitations in the use of her neck, lower back, left shoulder, and left knee.

In 2017, Russo brought this action under Insurance Law § 5102 (d) in 2017 to recover damages for her alleged injuries beyond those available through no-fault insurance. Defendants now move for summary judgment under CPLR 3212. Defendants' motion is denied.

Defendants argue that Russo's serious-injury claim must be dismissed because those injuries assertedly do not constitute "serious injury" under Insurance Law § 5102 (d) and because the injuries were created by a prior accident that plaintiff suffered in 2010. This court disagrees.

When seeking dismissal of a plaintiff's serious-injury claim at summary judgment, a defendant bears the prima facie burden of proving that a plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). (Brown v Achy, 9 AD3d 30, 31 [1st Dept 2004].) The defendant can fulfill this burden by submitting "affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings" support plaintiff's claim to be suffering from injuries that qualify as "serious." (Shinn v Catanzaro, 1 AD3d, 195, 197 [1st Dept 2003].) Alternatively, the defendant can meet its burden by submitting evidence indicating that the plaintiff's claimed injuries from the accident at issue instead resulted from preexisting conditions or prior injuries. (See Pommells v Perez, 4 NY3d 566, 578 [2005].)

Once a defendant has met its prima facie burden, the plaintiff must submit evidence raising a triable issue of fact. (Shinn, 1 AD3d at 197.) Plaintiff must provide objective medical proof demonstrating a "significant limitation of the use of a body function or system" or "a permanent loss of use of a body function or system." (Eisen v Walter & Samuels, Inc., 215 AD2d 149, 150 [1st Dept 1995].) Subjective complaints are insufficient to establish a serious injury (Id.) Objective medical proof that can create a triable issue includes, for example, evidence of a physical limitation from conducting an objective range-of-motion test or the straight-leg test. (Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 [2002]; Kim v Cohen, 208 AD2d 807, 807 [2d Dept 1994].)

Here, defendants submit a sworn report of an independent orthopedic examination of Russo. The physician who performed the examination concluded that there was no evidence of orthopedic disability or limitation of range of motion, and that Russo remained able to perform her occupation as a customer-service representative. (See Report of Dr. Spataro, NYSCEF No. 38.) Defendants also offer a sworn radiological review of Russo's 2016 MRIs of her cervical spine, lumber, left shoulder, and left knee. Defendants' radiologist concluded that those MRIs of did not reveal recent traumatic injuries; rather, all degenerative changes in Russo's physical condition were chronic and pre-existing, potentially as a result of the 2010 accident. (Report of Dr. Katzman, NYSCEF No. 39.)

This evidence is sufficient to satisfy defendants' prima facie burden for purposes of Insurance Law § 5102 (d). To defeat summary judgment, therefore, Russo must come forward with objective medical evidence of a serious injury. This court concludes that she has done so.

Russo's treating physician performed two objective medical tests (including the straight-leg test). He found significant limitations of motion of her cervical spine, lumbar spine, left shoulder, and left knee. The physician concluded that the injuries resulted in a permanent reduction in Russo's normal range of motion y, and that the injuries could continue to cause [*3]Russo plain when she carried out ordinary daily activities. He further concluded that the injuries were causally related to Russo's 2015 accident, rather than resulting from a prior accident or preexisting degenerative condition. (Affirmation of Dr. Aminov, NYSCEF No. 49.) Considered in the light most favorable to plaintiff (Toure., 98 NY2d at 353), this objective medical evidence suffices to create a factual dispute requiring trial.

Accordingly, it is hereby

ORDERED that Defendants' motion for summary judgment under CPLR 3212 is denied.