The following numbered papers were read on this motion: NYSCEF Document Nos. 29-44 (submitted by Defendants DeFalco's Service Center of Edison Inc. and Lawrence Palgano ^[FN1] in support of the motion); NYSCEF Document Nos. 47—60 (submitted by Plaintiff in opposition); [*2]61 (submitted by said Defendants in reply).

Upon the foregoing papers and having heard oral argument on the record, the within motion is determined as follows.

Plaintiff Tykeem T. Fluker ("Plaintiff") asserts in this action that on September 29, 2022, while operating his motor vehicle, he sustained personal injuries in a motor vehicle accident negligently caused by Defendant Lawrence Palgano, operator of a vehicle owned by Defendant Defalco's Service Center of Edison Inc.

Defendants DeFalco's Service Center of Edison Inc. and Lawrence Palagano (hereinafter "Defendants") move for summary judgment dismissing Plaintiff's amended complaint on the asserted ground that Plaintiff did not sustain a serious injury as defined by New York Insurance Law § 5102 (d), as required by Insurance Law § 5104 (a), proximately resulting from the subject accident. 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" (id. § 5102 [d]). The last category is known as "90/180."

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; 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]). "The courts [are] responsible for vetting serious injury automobile cases by application of basic summary judgment principles to avoid unnecessary jury trials where the injury is clearly minor" (Van Nostrand v Froehlich, 44 AD3d [*3]54, 60 [2d Dept 2007]). A moving defendant bears the initial burden of establishing, by the submitting of evidentiary proof in admissible form, a prima facie case that a plaintiff has not sustained a serious injury from the subject motor vehicle accident as a matter of low, i.e., that there are no material issues of fact (see Toure v Avis Rent a Car Sys., Inc., 98 NY2d 345 [2002]; Goddy v Eyler, 79 NY2d 955 [1992]).

If the moving defendant has made such a showing that a plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, the burden shifts to the 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]; Grossman v Wright, 268 AD2d 79, 84 [2d Dept 2000]). On the other hand, a failure by the moving defendant to make a showing that a plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing parties (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

In Plaintiff's bill of particulars, he alleged injuries to the lumbar spine (NYSCEF Doc No. 35, bill of particulars ¶ 4).

The categories of serious injury claimed by Plaintiff were set forth as the following: "Plaintiff sustained a 'serious injury' which means a personal injury which resulted in death; dismemberment, significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organs, member function or system; permanent consequential limitation of use of a body organs 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 customarily daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" (id.).

In the present case, Plaintiff's bill of particulars broadly alleged injuries under all nine statutory "serious injury" categories set forth in Insurance Law § 5102(d). Accordingly, Defendants evaluated what they describe as the "plausible serious injury categories," namely: (1) permanent loss of use of a body organ, member, function, or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; and (4) a medically determined injury or impairment of a non-permanent nature preventing the performance of substantially all customary daily activities for not less than 90 of the 180 days following the accident. Defendants argue that, based on the medical records and reports from Plaintiff's health care providers, Plaintiff sustained at most temporary soft-tissue sprains and strains of the lower back, all of which have resolved.

Addressing each "plausible" category, Defendants first argue that Plaintiff cannot establish a "permanent loss of use of a body organ, member, function, or system" because there is no competent medical evidence showing a total and permanent loss of function. Citing Gaddy [*4]v Eyler (79 NY2d 955 [1992]) and Oberly v Bangs Ambulance, Inc. (96 NY2d 295 [2001]), Defendants contend that this statutory category requires proof of a complete loss of use, not merely limited function or intermittent pain. Applying the Oberly standard, they assert that Plaintiff's alleged injuries are minor and do not amount to a total or permanent loss of any body part or system.

Defendants next argue that Plaintiff cannot meet the "permanent consequential limitation of use" or "significant limitation of use" categories of serious injury because his alleged back injury does not rise above a minor or mild limitation and lacks objective medical proof. They explain that a "permanent consequential limitation" requires a permanent restriction of a body organ or member, while a "significant limitation" pertains to a body function or system and need not be permanent, but must still be supported by medical evidence of its extent and duration.

Defendants' expert, Dr. Jeffrey Passick, whose IME report was submitted, found that Plaintiff's lumbar spine strain was attributable to the September 29, 2022 accident but had fully resolved, and that the percutaneous lumbar discectomy performed in January 2023 was not causally related to the accident but rather to pre-existing degenerative disc disease. Dr. Passick administered range of motion testing to Plaintiff using a goniometer. Range of motion was complete. Other testing yielded negative results.

Here, Defendants contend that Plaintiff's complaints are subjective and unsupported by competent medical findings, particularly since he returned to his physically demanding job within days of the accident. Citing extensive case law, they further argue that MRI findings of disc bulges or herniations alone are insufficient to establish a serious injury without objective evidence of functional limitation. Accordingly, they maintain that plaintiff has failed to demonstrate either a permanent or significant limitation of use under the statute.

Defendants then argue that Plaintiff cannot meet the "90/180-day" serious injury category because there is no competent medical or factual proof that his injuries prevented him from performing substantially all of his usual daily activities for at least 90 of the 180 days following the accident. They note that Plaintiff missed only three days of work and promptly returned to his physically demanding job without restrictions, undermining any claim of substantial curtailment. Citing Licari v Elliott (57 NY2d 230), Defendants contend that mere minor limitations or subjective complaints of pain are insufficient to meet this threshold. Since Plaintiff provided no medical evidence linking his injuries to any period of disability or inability to perform daily functions, Defendants maintain that the record fails to establish a prima facie showing of serious injury under this category.

Therefore, the burden of establishing a material issue of fact shifts to the Plaintiff. Plaintiff attempts to rebut Defendants' assertion that Plaintiff has not met any of the serious injury categories by stating he has produced ample objective medical evidence showing serious and permanent injuries causally related to the accident. Plaintiff relies on a recent evaluation. Dated June 9, 2025, the evaluation is described in a report from neurologist Dr. Irving Friedman (NYSCEF Doc No. 56), which documented range of motion deficits, muscle spasms, disc bulges, herniation, and chronic pain syndrome confirmed through objective testing and opined [*5]that there was causality. Plaintiff contends this evidence creates a triable issue under the "permanent consequential" and "significant limitation" categories of serious injury. Regarding the 90/180 category, Plaintiff maintains that Defendants' lack of contemporaneous medical evidence precludes summary judgment and that his own medical records support a genuine issue of fact regarding his functional limitations following the collision.

Plaintiff also relies on a series of medical records submitted as NYSCEF Document Nos. 50-55. This Court reviewed them extensively, as it did Dr. Friedman's report. While Dr. Friedman used a goniometer to measure range of motion, no other submitted medical record evidences use of one. No goniometer or inclinometer was used to measure range of motion testing referred to in reports of Dr. Michael Alleyne, dated September 29, 2022 and November 7, 2022, and Osewa Olatokunbo, N.P., dated December 22, 2022 (see NYSCEF Doc No. 53, medical records at PDF 22, 30-31, 39-40). The result is that there is a lack of objective testing of Plaintiff's range of motion by his treating health care providers, with the exception of the recent, June 9, 2025 testing by Dr. Friedman.

In recent years, the Second Department case law has been consistent that limitations must be documented with objective medical evidence. Most recently, the Court wrote, "In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, the Supreme Court properly determined that the reports of the plaintiffs' expert, Ruben Oganesov, were insufficient to raise a triable issue of fact, as he failed to identify the method utilized to measure either plaintiff's range of motion (see Dinc v Shalesi, 208 AD3d 558, 559 [2022]; Nicholson v Kwarteng, 180 AD3d 695, 696 [2020]; John v Linden, 124 AD3d at 599)" (Cosme-Almandoz v Alejandrino, AD3d , 2025 NY Slip Op 04626 [2d Dept 2025]; see Gonzalez v Cohn, 224 AD3d 667 [2d Dept 2024]; Gersbeck v Cheema, 176 AD3d 684 [2d Dept 2019]).

Plaintiff's one instance of objectively measured limitations in range of motion testing — that by Dr. Friedman — stands out as failing to make a showing of an issue of fact regarding the permanent consequential limitation and significant limitation categories of serious injury. One exam report containing objectively measured limitations in range of motion does not rebut a defendant's prima facie case (see Sukalic v Ozone, 136 AD3d 1018 [2d Dept 2016]; Lea v Cucuzza, 43 AD3d 882 [2d Dept 2007]). To show that there is an issue of fact concerning a permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system, a plaintiff must demonstrate that a serious injury existed for a certain period of time; there must be evidence of duration of a serious injury (see Letellier v Walker, 222 AD2d 658 [2d Dept 1995]; Beckett v Conte, 176 AD2d 774 [2d Dept 1991]; Partlow v Meehan, 155 AD2d 647 [2d Dept 1989]). Here, there is no objective evidence of the duration of limitations.

This conclusion is consistent with the objective diagnostic evidence and with established precedent holding that, even where disc bulges or herniations are present, such findings do not constitute a serious injury absent objective medical evidence demonstrating a significant and causally related limitation of use (see Pommells v Perez, 4 NY3d 566 [2005]; see also Krmic v Corrie, 235 AD3d 450 [2d Dept 2025]).

Dr. Friedman himself showed movements, albeit limited, in the lumbar spine, so Plaintiff clearly did not sustain a permanent loss of use of a body organ, member, function or system (see Oberly v Bangs Ambulance, Inc., 96 NY2d 295). Plaintiff lost only three days of work (see NYSCEF Doc No. 39, transcript at 18); this does not show that 90/180 was sustained (see Marin v Ieni, 108 AD3d 656 [2d Dept 2013]). Plaintiff testified: "After the accident I wasn't able to fully perform. I have limitations with my back use and pulling and pushing things. I can only do it for a certain amount of time." "[I]t definitely changed the way I work out, sports activities, basketball. Yeah, I couldn't really do that for too long." This does not equate to 90/180 (see Omar v Goodman, 295 AD2d 413 [2d Dept 2002]).

Plaintiff also claimed the categories of death, dismemberment, significant disfigurement, a fracture, and loss of a fetus. The lack of seriousness with which Plaintiff took the requirement that a bill of particulars list the actual applicable categories led this Court to sanction the law firm representing him (see Fluker v DeFalco's Serv. Ctr. of Edison, Inc., AD3d , 2025 NY Slip Op 25220 [2d Dept 2025]). Be that as it may, it is clearly evident that Plaintiff did not die, there was no dismemberment in connection with the lumbar spine (the only body part claimed to have been injured), no significant disfigurement, and no fracture. Plaintiff was a male, so there was no loss of a fetus.

In conclusion with respect to the definition of serious injury in Insurance Law § 5102 (d), subsuming nine categories, Plaintiff failed to raise a triable issue of fact to Defendants' prima facie case of a lack of serious injury,

In moving for summary judgment, moving Defendants relied in part on two medical experts. As mentioned above, they relied on the IME report of Dr. Jeffrey Passick. Defendants also relied on an affirmed biomechanical analysis report by Dr. Kevin Toosi, a biomedical engineering scientist. The biomechanical engineer reviewed photographs of the vehicles, witness statements, deposition transcripts, repair estimates, and vehicle-specific data for both vehicles. Using these materials and established biomechanical research, Dr. Toosi analyzed the forces and occupant kinematics involved in the low-speed rear-end collision. He concluded that the impact generated forces well below thresholds known to cause spinal injury, disc bulging, or herniation, and that Plaintiff's spine never exceeded its normal physiological range of motion. Citing crash test and medical literature, Dr. Toosi opined that the loads from this collision could not have caused or aggravated Plaintiff's lumbar spine conditions, which he attributed instead to pre-existing degenerative changes rather than trauma from the subject accident.

Plaintiff contends that biomechanical engineers cannot reliably determine the cause of specific injuries, making Dr. Toosi's testimony inadmissible and without probative value. Here, Dr. Toosi is qualified to offer an opinion on the biomechanical forces involved in the subject collision and whether those forces were sufficient to cause the injuries alleged. As in Vasquez v Coastal Charter Service Corp. (240 AD3d 822 [2d Dept 2025]), Osorio v Punjab Enter. Inc. (215 AD3d 494 [1st Dept 2023]), Holmes v Brini Tr. Inc. (123 AD3d 628 [1st Dept 2014]), and Plate v Palisade Film Delivery Corp. (39 AD3d 835 [2d Dept 2007]), Appellate Divisions [*6]have recognized that a biomechanical expert may testify regarding whether the magnitude of forces in an accident could have caused the claimed injuries, provided that a proper foundation is laid based on the expert's education, training, and experience. Dr. Toosi, who holds degrees in both medicine and bioengineering, conducted a biomechanical analysis using accepted scientific methods and data. Accordingly, Dr. Toosi's testimony as to the forces generated in the collision and whether those forces were consistent with causing Plaintiff's alleged injuries is admissible.

Nonetheless, the Court cannot accept the opinion of Dr. Toosi because it conflicts with that of Dr. Passick regarding proximate causation. The latter concluded, "After review of the claimant's file, taking a history and performing a physical examination, it appears that the above-diagnosed injury [resolved lumbar spine strain] is causally related to the accident on September 29, 2022" (NYSCEF Doc No. 36, IME report at 5). The conflict precludes Defendants' demonstrating a lack of issue of fact on that issue (see Black v County of Dutchess, 87 AD3d 1097 [2d Dept 2011]). Ultimately, while there was a conflict in Defendants' expert evidence concerning proximate causation, Defendants did make out a prima facie case that whatever injuries which Plaintiff did sustain in the subject accident failed to rise to the level of serious injury, and this was not adequately rebutted by Plaintiff.

It is hereby ORDERED that the motion of Defendants DeFalco's Service Center of Edison Inc. and Lawrence Palgano for summary judgment dismissing Plaintiff's complaint on the asserted ground that he failed to sustain serious injury from the subject motor vehicle accident is GRANTED. The Clerk shall enter judgment in favor of said Defendants.