Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on June 8, 20254, under motion sequence number four, by Jack Oh Taxi Corp. (hereinafter the moving defendant) for an order pursuant to CPLR 3212 dismissing the verified complaint of Kharil Jacobs (hereinafter the plaintiff) on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). The motion is opposed.

Exhibits A-G

Exhibits A-E

Exhibit A

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on June 11, 20254, under motion sequence number five, by Shawn Blackwell (hereinafter the cross-moving defendant) for an order pursuant to CPLR 3212 dismissing the verified complaint of Kharil Jacobs (hereinafter the plaintiff) on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d). The motion is opposed.

Exhibits A-D (referring to the moving defendant's exhibits)

Exhibits A-E

On November 11, 2021, plaintiff commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's office (KCCO). On April 25, 2022, the moving defendant interposed and filed a verified answer with the KCCO. On May 3, 2022, the cross-moving defendant interposed and filed a verified answer with cross-claims with the KCCO. On April 11, 2025, plaintiff filed a note of issue.

Plaintiff's complaint alleges the following salient facts. On May 8, 2021, at approximately 11:33 p.m., the plaintiff was operating a 2018 Honda vehicle bearing New York State license plate number T76987C on Furman Avenue, Bronx, New York, near its intersection with East 241st Street. On the same date, time, and place, defendant Shawn Blackwell (hereinafter Blackwell) was operating a 2009 Ford vehicle bearing New York State license plate number 19898TY, with the permission of its owner, Jack Oh Taxi Corp. At that date, time, and place, the front of Blackwell's vehicle struck the rear of plaintiff's vehicle (hereinafter the subject accident). The subject accident was due to Blackwell's negligent operation of his vehicle. The subject accident caused the plaintiff to sustain serious physical injuries.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material issue of fact (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], citing Alvarez, 68 NY2d at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

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 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]).

"[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]). "With 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. at 84, citing Gaddy v Eyler, 79 NY2d 955, 957 [1992]). "The plaintiff in such a situation must present objective evidence of the injury" (Grossman, 268 AD2d at 84).

Plaintiff's bill of particulars alleged the following injuries, among other: a disc herniation at the C3-C4 intervertebral disc space with radiculopathy that necessitated steroidal injections; disc bulges at the C4-C5, C5- C6 intervertebral disc spaces with radiculopathy; a disc herniation at the L5-S1 intervertebral disc space with radiculopathy that necessitated steroidal injections; and disc bulges at the L3-L4, L4-L5 intervertebral disc spaces with radiculopathy. Plaintiff also alleged injury under the 90/180 category of serious injury.

The sole medical evidence the moving defendant provided in support of the motion was an affirmed report from Dr. Howard A. Kiernan, an orthopedic surgeon. Dr. Kiernan conducted an independent medical examination of the plaintiff on January 19, 2023, more than a year after the subject accident. Dr. Kiernan performed a straight leg raise test of the plaintiff and stated it was negative with no radiculopathy. Dr. Kiernan, however, did not state numerical findings of plaintiff's range of motion or compare it to what was normal. Dr. Kiernan also offered no opinion regarding the plaintiff's condition during the first six months after the subject accident. As a result, the moving defendant did not adequately address the plaintiff's claim clearly set forth in the bill of particulars, that the plaintiff sustained a serious injury to the lumbar spine. Nor did the moving defendant adequately address plaintiff's claim that plaintiff sustained injury under the 90/180 day category of Insurance Law § 5102 (d) (see Youn Koo Lyu v Aleksandr, 110 AD3d 715, 715 [2d Dept 2013], citing Bove v Zanelli, 102 AD3d 644, 644 [2d Dept 2013]).

In sum, the moving defendant did not establish that plaintiff did not sustain a serious injury as set forth in Insurance Law § 5102 (Shirman v Lawal, 69 AD3d 838, 839 [2d Dept 2010], citing Walker v Public Adm'r of Suffolk County, 60 AD3d 757, 757 [2d Dept 2009]).

Considering the foregoing, the moving defendant's motion is denied regardless of the sufficiency of the plaintiff's opposing papers (see Dowling v Valeus, 119 AD3d 834, 835 [2d Dept 2014], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The cross-moving defendant relied upon the same facts, arguments and evidence proffered by the moving defendant. Consequently, the cross-moving defendant's motion is also denied.

The motion by defendant Jack Oh Taxi Corp, for an order pursuant to CPLR 3212 dismissing the complaint of plaintiff Kharil Jacobs on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d) is denied.

The cross-motion by defendant Shawn Blackwell for an order pursuant to CPLR 3212 dismissing the complaint of plaintiff Kharil Jacobs on the basis that the plaintiff did not sustain a serious injury as defined in Insurance Law § 5102 (d) is denied.

The foregoing constitutes the decision and order of this Court.