The following numbered papers were read on this motion:

Plaintiff Jakub Twarkowski ("Plaintiff") asserts in this action that on October 29, 2022, while he was operating his vehicle, he sustained personal injuries in a collision at East 87 Street and Flatlands Avenue, in Brooklyn, negligently caused by Defendant Rodney Morrison, who operated a vehicle owned by Defendant Sutphin Ride Inc. (see generally NYSCEF Doc No. 16, complaint).

Defendants move for summary judgment dismissing Plaintiff's complaint upon the asserted ground that Plaintiff failed to sustain a serious injury as per Insurance Law § 5102 (d) (see NYSCEF Doc No. 13, notice of motion), as required by Insurance Law § 5104 (a). The latter provides in pertinent part: "Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss (Insurance Law § 5104 [a]). "Serious injury" means 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]).

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]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

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 v Elliott, 57 NY2d 230 [1982]). Moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not sustained a serious injury from the subject motor vehicle accident as a matter of law, i.e., that there are no material issues of fact (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

If moving Defendants have made a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, the burden shifts to Plaintiff to submit evidence in admissible form sufficient to create a material issue of fact necessitating a trial (see Franchini v Palmieri, 1 NY3d 536 [2003]; Grasso v Angerami, 79 NY2d 813 [1991]).

On their motion, Defendants included a copy of Plaintiff's bill of particulars as an exhibit [*2](see NYSCEF Doc No. 18). It alleged in paragraph 20 as follows with respect to serious injury:

Plaintiff sustained serious injury as defined by Section 5102 (d) of the Insurance Law of the State of New York in that Plaintiff sustained a personal injury which resulted 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. (NYSCEF Doc No. 18, bill of particulars, ¶ 20.)

The lumbar spine, left knee, and right shoulder were identified as the particular body parts which Plaintiff claimed were injured as a result of the accident, as per paragraph 10 of the bill of particulars (see id. ¶ 10).

In moving for summary judgment, Defendants rely on Dr. Pierce J. Ferriter's affirmed IME report of October 14, 2024; Dr. Mark J. Decker's July 31, 2024 affirmed lumbar spine MRI review; Plaintiff's EBT transcript; and attorney Michael Lachman's affirmation.

Inasmuch as it is a defendant's burden to rule out the viability of all asserted categories of serious injury, as alleged by the plaintiff, i.e., that as a matter of law, the plaintiff did not sustain them, this Court will assess whether Defendants made out a prima facie case to the effect that Plaintiff did not sustain a serious injury as defined by the asserted categories.

(a) Death

Since Dr. Ferriter examined Plaintiff on October 14, 2024, Defendants established a prima facie case that Plaintiff did not sustain death (see NYSCEF Doc No. 19, Ferriter IME).

(b) Dismemberment

Dr. Ferriter did not record loss of a member as he examined Plaintiff's shoulders and knees, so Defendants established a prima facie case that Plaintiff did not sustain dismemberment (see id.).

(c) Significant Disfigurement

Plaintiff informed Dr. Ferriter that he did not sustain any lacerations (see id. at 1). Therefore, Defendants established a prima facie case that Plaintiff did not sustain significant disfigurement.

(d) Fracture

Plaintiff informed Dr. Ferriter that he did not sustain any fractures (see id. at 1). Therefore, Defendants established a prima facie case that Plaintiff did not sustain a fracture.

(e) Loss of Fetus

Defendants submitted a copy of Plaintiff's driver license, which identifies him as male (see NYSCEF Doc No. 19 at PDF 9). Therefore, Defendants established prima facie that Plaintiff did not sustain a loss of fetus.

(f) Permanent Loss of Use of a Body Organ, Member, Function or System

There was no total loss of use of any body part injured by Plaintiff, as per Dr. Ferriter's examination. If the body parts moved, there could be no total loss (see Oberly v Bangs [*3]Ambulance, Inc., 96 NY2d 295 [2001]).

(g) Permanent Consequential Limitation of Use of a Body Organ or Member

Dr. Ferriter examined the body parts which were listed in the bill of particulars as having been injured. He used a hand-held goniometer and applied AMA guidelines to impairment. The lumbar spine displayed full range of motion and there was no muscle spasm or tenderness. Other provocative orthopedic testing was negative. Examination of the left knee and the right shoulder revealed no heat, swelling, effusion, erythema, or crepitus, range of motion was complete, other provocative orthopedic testing was negative, and there was no complaint of tenderness. Dr. Ferriter diagnosed resolved alleged lumbar spine, right shoulder, and left knee sprain/strain. (See NYSCEF Doc No. 19, Ferriter IME, at 3-6.) Therefore, Defendants made out a prima facie case that Plaintiff did not sustain a permanent consequential limitation of use of a body organ or member (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955).

(h) Significant Limitation of Use of a Body Function or System

The same analysis as that for permanent consequential limitation of use of a body organ or member applies to significant limitation of use or a body function or system.

(i) "90/180" ("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")

As noted by defense counsel, Plaintiff missed three weeks of work as a result of the accident (see NYSCEF Doc Nos. 14, Lachman aff § 15; 21, pl EBT tr at 11). This established that Plaintiff did not satisfy the 90/180 category (see Heesook Choi v Mendez, 161 AD3d 1054 [2d Dept 2018]).

Additionally, to the extent that Dr. Decker opined that Plaintiff's lumbar spine MRI revealed evidence of pre-existing degeneration, as argued by counsel (see NYSCEF Doc No. 14, Lachman aff, ¶ 14), the Court notes that Defendants failed to make out a prima facie case of lack of proximate causation because Dr. Decker did not opine regarding the left knee and the right shoulder.

Since Defendants made out a prima facie case that Plaintiff did not sustain a serious injury, the burden shifted to Plaintiff to submit evidence in admissible form sufficient to create a material issue of fact necessitating a trial (see Franchini v Palmieri, 1 NY3d 536; Grasso v Angerami, 79 NY2d 813).

Dr. Yura Stoly's affirmation attested to first examining Plaintiff on November 1, 2022, a few days after the accident. He followed his treatment and periodically re-examined him. In doing so, he too used a goniometer and relied on AMA guidelines. (See generally NYSCEF Doc No. 24, Stoly aff.)

On November 1, 2022, Dr. Stoly found reduced ranges of motion in lumbar flexion, left knee flexion, and right shoulder extension, abduction, and adduction which were significant. Other provocative orthopedic testing was positive. Tenderness in the lumbar spine and right shoulder was present. There was left knee instability. (See id. at PDF 4-5.)

Dr. Stoly re-examined Plaintiff on December 13, 2024. With regard to the body parts [*4]that had significant limitations on November 1, 2022, there were still limitations in ranges of motion in right shoulder extension and abduction (see id. at PDF 8). As such, Dr. Stoly's quantitative findings from the two examinations raised a triable issue of fact as to whether, as a result of the subject accident, Plaintiff sustained a significant limitation and a permanent consequential limitation (see Caliendo v Ellington, 104 AD3d 635 [2d Dept 2013]; Estrella v GEICO Ins. Co., 102 AD3d 730 [2d Dept 2013]).

Plaintiff thus having raised a triable issue of fact as to two categories of serious injury as defined by the nine categories, it is irrelevant whether he raised a triable issue of fact as to other categories (see Linton v Nawaz, 14 NY3d 821 [2010]; Curiale v Delfavero, 211 AD3d 905 [2d Dept 2022]). Considering also that Defendants failed to make out a prima facie case of lack of proximate causation, Plaintiff is entitled to seek recovery for all injuries (see O'Neill v O'Neill, 261 AD2d 459 [2d Dept 1999]).

This Court reviews motion papers in advance (see Matter of Court's Discharge of its Responsibilities Pursuant to 22 NYCRR 100.3 (D) (2), (3), 80 Misc 3d 813, 814 [Sup Ct, Kings County 2023]). In reviewing the within motion papers, the first document which was reviewed was the bill of particulars to ascertain the serious injury categories claimed and the body parts asserted to have been injured. The Court observed that death was claimed as a serious injury category. The Court was flummoxed because Defendants submitted an IME report evidencing that Plaintiff had been examined two years after the accident. Realizing that a claim of death was inaccurate, the Court then noticed that dismemberment, significant disfigurement, and fracture were also claimed, but a perusal of the medical records, Dr. Ferriter's IME report, and Dr. Stoly's affirmation contained nothing regarding this. By the time the Court then continued to the next claimed serious injury category, loss of fetus, the Court recalled that Dr. Ferriter used male pronouns to discuss Plaintiff's recounting of the accident history. The Court realized that all nine categories of serious injury had been claimed by Plaintiff. (See NYSCEF Doc NO. 18, bill of particulars, ¶ 20.) While the Court had previously encountered bills of particulars where certain claimed categories of serious injury were questionable, this was the first instance where a plaintiff claimed all nine categories.

At oral argument, the Court inquired of Plaintiff's counsel whether Plaintiff was alive and/or indeed was (or, if deceased, had been) a male. Satisfied that Plaintiff was alive (he was examined by Dr. Ferriter, who used male pronouns), and noting that there appeared to be no indication that Plaintiff sustained dismemberment, significant disfigurement, and fracture, as well as permanent (total) loss of use of a body organ, member, function or system, the Court raised an issue as to the frivolousness of Plaintiff asserting that he sustained all nine serious injury categories. After all, having to spend valuable time reviewing the papers to assess all nine categories consumed more time than what would usually be spent on a serious injury summary judgment motion; the excess time could have been better spent reviewing other motions.

The Court offered Plaintiff's counsel an opportunity to explain why all nine serious injury categories were claimed. Counsel stated that they were not claimed — that all nine categories were merely copied, presumably from the Insurance Law. Counsel argued that the individual body parts listed in another paragraph (10) of the bill of particulars provided the relevant information. Counsel described the listing of serious injury categories claimed as "unartful" and [*5]"unfortunate."

The Court does not accept counsel's explanation. The wording of paragraph 20 of the bill of particulars clearly states that "Plaintiff sustained serious injury as defined by Section 5102 (d) of the Insurance Law of the State of New York in that Plaintiff sustained a personal injury which resulted in death. . . ." (NYSCEF Doc No. 18, bill of particulars, ¶ 20).

Defendants' demand for a bill of particulars, as quoted by Plaintiff before providing the response, included, "State in what respect Plaintiff(s) has/have sustained a serious injury, as defined in subdivision (d) of Section 5102 of the Insurance Law. . . ." (id.) To then list all nine categories, most of which were not applicable, indicates that the law firm representing Plaintiff provided a sham response, equivalent to providing no response. Pleading the specific categories claimed to support an allegation of serious injury in a motor vehicle accident is not a pro forma matter. Counsel needs to assess which categories indeed are relevant. A request for a bill of particulars should be taken seriously (see M&T Bank v Friedmann, 217 AD3d 934 [2d Dept 2023]; Manzo v Nealon, 18 AD3d 1043 [3d Dept 2005]; Brown v Bazin, 121 AD2d 422 [2d Dept 1986]; Gargano v Rosenthal, 100 AD2d 534 [2d Dept 1984]). Clearly, the law firm representing Plaintiff did not do so.

A Court should not have to expend time reviewing a bill of particulars, only to ascertain that an assertion therein is frivolous. "[T]he court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart" (22 NYCRR 130-1.1 [a]). Conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" (id. at [c] [1]), or "it asserts material factual statements that are false" (id. at [c] [3]). A court may sua sponte impose sanctions against a law firm provided an opportunity to be heard is offered (see Kamen v Diaz-Kamen, 40 AD3d 937 [2d Dept 2007]). Here, counsel appearing on the motion attempted to explain the listing of all nine categories of serious injury being claimed but the Court does not accept the explanation. Claiming that Plaintiff sustained a serious injury as defined by all nine categories was completely without merit in law and false.

A New York State Supreme Court Justice's salary is $232,600. Dividing that by the approximate 250 work days in a year yields a quotient of $930 per work day. Then dividing $930 by eight hours yields a quotient of $116. The Court spent more than one hour reviewing the papers for this motion. A sanction in the sum of $100 is imposed against the Law Offices of William Pager, the law firm representing Plaintiff, payable to the New York State Lawyers' Fund for Client Protection.

IT IS HEREBY ORDERED that Defendants' motion for summary judgment dismissing Plaintiff's complaint on the asserted ground that Plaintiff failed to sustain a serious injury in the subject motor vehicle accident is DENIED.

IT IS HEREBY FURTHER ORDERED that a sanction in the sum of $100 is imposed against the Law Offices of William Pager, payable to the New York State Lawyers' Fund for Client Protection.