The following e-filed documents listed on NYSCEF (Motion No. 003) numbered 45-53, [*2]56-63 were read on this motion.

Upon the foregoing documents, and after oral argument conducted on October 8, 2025, on Motion Sequence No. 003, Motion Sequence No. 003 is resolved and therefore, it is hereby,

ORDERED that Defendants' Motion Sequence No. 003 request for summary judgment on the threshold issue for serious injury under Insurance Law § 5102 [d] is DENIED in its entirety; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of the Court.

February 7, 2024, Plaintiff commenced this negligence action to recover for personal injuries allegedly sustained by the Plaintiff because of a vehicle accident on October 2, 2023. Defendants filed Motion Sequence No. 003 by Notice of Motion on June 5, 2025, seeking (a) summary judgment pursuant to CPLR § 3212 and dismissal of Plaintiff's Complaint on the issue of failing to meet the serious injury threshold requirement mandated under Insurance Law § 5102 [d]; and (b) for such other and further relief as this Court deems just and proper.

Plaintiff filed opposition on September 5, 2025. On October 8, 2025, Defendants waived reply on the record in Court and oral argument was completed.

Plaintiff and Defendants vehicle were involved in a motor vehicle accident occurring on October 2, 2023, at or near the intersection of Grandview Avenue at or near its intersection with Brabant Street, County Richmond, State of New York. Plaintiff, Justin Caro, contends in the Complaint that as a result of the accident, he sustained serious injuries and economic loss greater than basic economic loss as defined by NYS Insurance Law § 5104. (NY St Cts Filing [NYSCEF] Doc No. 48). Plaintiff alleges in his Bill of Particulars that as a result of the accident Plaintiff sustained traumatic injuries to his cervical, thoracic and lumbar spine and right shoulder. (NY St Cts Filing [NYSCEF] Doc No. 57 at ¶10).

Plaintiff further contends that incident to traumatic and protracted pain, instability and disability post-accident, the plaintiff succumbed to complicated invasive right shoulder surgery as well as Epidural and Trigger Point Injections in the lumbar spine to address his significant limitations of motion post-accident. (see id).

On November 8, 2023, Plaintiff received a Trigger Point injection. (NY St Cts Filing [NYSCEF] Doc No. 59 at 83). Plaintiff was assessed by Atlantic Medical & Diagnostic, PC on November 8, 2023, as follows: Lumber Posttraumatic Sprain and Strain Syndrome and Muscle spasms of lower back (see id).

On December 13, 2023, Plaintiff received a Bilateral Sacroiliac joint injection. (see id at 50). Plaintiff was assessed by Atlantic Medical & Diagnostic, PC on December 13, 2023, as follows: Lumber Posttraumatic Sprain and Strain Syndrome and Muscle spasms of lower back (see id at 52-53).

On January 17, 2024, Plaintiff received a Bilateral Sacroiliac joint injection. (see id at 22). Progress notes from Plaintiff's medical provider, Atlantic Medical & Diagnostic, PC, on January 17, 2024 indicate:

Lumbar Spine Pain

Patient reported pain is bilateral. The patient describes his pain as constant. The pain is aching, sharp, stabbing and soreness. Patient says, at its worse his pain is 8/10. Right now he describes his pain as 7/10 on a pain scale of 0-10. The pain is made worse by bending, sitting a long time and standing a long time. Other associated symptoms/problems are as follows: difficulty staying asleep due to pain.

Shoulder Pain

Patient reported pain is on right side. The patient describes his pain as constant. The pain is aching, sharp, tight and soreness. Patient says, at its worse his pain is 8/10. Right now he describes his pain as 7/10 on a pain scale of 0-10. The pain is made worse by lifting, movement and laying on area. Other associated symptoms/problems are as follows: difficulty staying asleep due to pain.

Thoracic Pain

Patient reported pain is bilateral. R>L The patient describes his pain as constant. The pain is aching, sharp, stabbing, tight and soreness. Patient says, at its worse his pain is 6/10. Right now he describes his pain as 5/10 on a pain scale of 0-10. The pain is made worse by bending, sitting a long time and standing a long time.

Other associated symptoms/problems are as follows: difficulty staying asleep due to pain.

Cervical Spine Pain

Patient reported pain is bilateral. The patient describes his pain as constant. The pain is aching, sharp, tight and soreness. Patient says, at its worse his pain is 6/10. Right now he describes his pain as 6/10 on a pain scale of 0-10. The pain is made worse by bending, sitting a long time, turning to the right and breathing hard.

Other associated symptoms/problems are as follows: difficulty staying asleep due to pain.

Headache

He states that his headache is recurrent. Location of headache at onset was Frontal. Patient reports that he has same episode(s) 1-2 HOURS. He does not have photophobia. There is no vomiting associated with his headache. There has been no weight loss. There is no neck stiffness. He does not report pain in his eyes. (see id at 24-25).

Plaintiff's MRI report on October 20, 2023, of his right shoulder indicates a rotator cuff tear. (see id at 92). The impression reported is as follow:

1. Partial tear of distal subscapularis tendon.

2. Partial tear of distal supraspinatus tendon.

3. Type Ill acromion with hypertrophic changes of the acromioclavicular joint with impingement of the rotator cuff, in an appropriate clinical setting.

4. Fluid In the biceps tendon sheath consistent with tenosynovitis.

5. Mild joint effusion consistent with trauma or synovitis, in an appropriate clinical setting. (see id).

Plaintiff's MRI report on October 11, 2023 of the lumbar spine and cervical spine; and on October 20, 2023, of his thoracic spine indicate disc herniation. (see id at 93-96).

On June 9, 2025, Steve Losik, MD, affirmed that Plaintiff's MRI taken on October 20, 2023 revealed:

1) Broad-based posterior central T4-5 disc herniation with compression of anterior thecal sac and effacement of anterior subarachnoid space 2) Left paracentral T5-6 disc herniation with compression of anterior thecal sac and effacement of anterior subarachnoid space 3) TT-8 diffuse disc herniation with compression of anterior thecal sac, effacement of anterior subarachnoid space and Impingement of neural foramina 4) Posterior central TI0-1 1 disc herniation with compression of anterior thecal sac and effacement of anterior subarachnoid space. (NY St Cts Filing [NYSCEF] Doc No. 60 at 2-3).

On July 30, 2025, Keith Tobin, MD, affirmed that Plaintiff's MRI taken on July 21, 2025 revealed:

1) Mild to Moderate AC Joint Arthrosis; 2) Anteriorly downwardly hooked acromial shape, small subacromial spur further accentuating the rim; 3) Study negative for full-thickness rotator cuff tear. There is mild tendinosis in supraspinatus tendon, with minimal intrasubstance partial tear undermining a very small portion of the tendon attachment onto the greater tuberosity; 4) Subtle delaminating intrasubstance partial tear portion of the subscapularis tendon; the bulk of the tendon appears normal; 5) There is extensive tearing of the glenoid labrum at least Type VIII SLAP (extending down the posterior glenoid rim), and possibly type IX SLAP, with suggestion of possible extension down the anterior glenoid rim as well. (see id at 5-6).

Plaintiff testified that he had arthroscopic surgery on his right shoulder in December 2023. (NY St Cts Filing [NYSCEF] Doc No. 52 at 43, line 21 through 44, line 6). Plaintiff contends that the surgery helped, but that he is still not the same person he was prior to the accident and is unable to throw a ball with his children and stuff like that. (see id at 44, lines 7-11). Plaintiff further contends that prior to the accident he never had any complaints in any of the body parts that he injured in the accident. (see id at 46, lines 4-8).

Plaintiff testified that as a result of the accident, he has had difficulty standing on his feet for long periods of time, going grocery shopping, driving with his right hand, keeping his arm straight for a long duration of time, and playing with his children. (see id at 47, line 16 through 48, line 8).

Defendant's IME examination of the cervical spine found no swelling, discoloration, or deformity. (NY St Cts Filing [NYSCEF] Doc No. 51 at 5). Active range of motion revealed normal flexions. (see id). The Thoracic spine inspection revealed no swelling, discoloration, or deformity. The examination found no parathoracic spasm upon palpation and there was no complaint of tenderness upon palpation. (see id at 6). Active range of motion revealed normal flexions. (see id).

Inspection of the lumbar spine revealed no swelling, discoloration, or deformity and no muscle spasm was noted upon palpation of the paralumbar muscles. (see id). There was no complaint of tenderness noted upon palpation bilaterally. (see id). Active range of motion revealed normal flexions. (see id).

Plaintiff did complain of pain at extremes of motions. Pierce Ferriter, MD attested in the IME that the

examination indicates that the injured body parts alleged in the Bill of Particulars have resolved. The claimant did not sustain any significant or permanent injury as a result of the motor vehicle accident on 10/02/2023. There are no objective clinical findings indicative of a present disability, and functional impairment, which prevents the [*3]examinee from engaging in ADL, and usual activities including work, school, and hobbies. The claimant is able to return to full duty work without restrictions. (see id at 7-8).

Courts "have required objective proof of a plaintiff's injury in order to satisfy the statutory serious injury threshold" (see Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002] citing Dufel v Green, 84 NY2d 795 [1995]; Lopez v Senatore, 65 NY2d 1017 [1985]); "subjective complaints alone are not sufficient" (see id citing Gaddy v Eyler, 79 NY2d 955 [1992]; Scheer v Koubek, 70 NY2d 678 [1987]).

In New York automobile accident personal injury cases, a defendant may establish prima facie entitlement to summary judgment dismissing the complaint by submitting the affirmed reports of examining physicians that demonstrate that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 [d]. (see Lentini v Melina, 287 AD2d 550 [2d Dept 2001] citing Gaddy v Eyler, 79 NY2d 955 [1992]).

Defendants moving for summary judgment on the issue of Plaintiff not having sustained a serious injury must establish, prima facie, that Plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 [d] as a result of the accident. (see Polight v Martin, 237 AD3d 990 [2d Dept 2025] citing Toure v Avis Rent a Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]).

Defendants must submit competent medical evidence establishing prima facie that Plaintiff did not sustain a serious injury. (see id citing Zennia v Ramsey, 208 AD3d 735 [2d Dept 2022]; Melika v Caraballo, 187 AD3d 1173 [2d Dept 2020]).

"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. (see CLS Ins § 5102 [d])

Here there is conflicting evidence on the permanency and significance of Plaintiff's injuries. The medical records provided by the Plaintiff, the affirmations of Steve Losik, MD and Keith Tobin, MD, and the testimony of the Plaintiff at his deposition would satisfy he "serious injury" threshold requirement of Insurance Law § 5102 [d]. The IME report by Pierce Ferriter, MD, contradicts the evidence provided by the Plaintiff and concludes that the Plaintiff is able to return to full duty work without restrictions.

In this case, the parties present conflicting expert medical opinions, which raise triable issues of fact as to whether plaintiff sustained serious injuries within the meaning of Insurance Law § 5102 [d]. It is well settled that conflicting medical evidence on the issue of the permanency and significance of a plaintiff's injuries warrants denial of summary judgment. (see Scully v Stephens, 214 AD3d 834 [2d Dept 2023]; Pommells v Perez, 4 NY3d 566 [23005]; Wilcoxen v Palladino, 122 AD3d 727 [2d Dept 2014]; Garcia v Long Island MTA, 2 AD3d 675 [*4][2d Dept 2003]; Noble v Ackerman, 252 AD2d 392 [1st Dept 1998]).

Accordingly, based on the foregoing, Defendants' Motion Sequence No. 003 request for summary judgment is DENIED in its entirety.

It is hereby ORDERED that Defendants' Motion Sequence No. 003 request for summary judgment on the threshold issue for serious injury under Insurance Law § 5102 [d] is DENIED in its entirety; and it is further,

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of the Court.