The following numbered papers were used on these motions: NYSCEF Document Numbers 65-75, 78-83, 85-86, 104-133, 135-136.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within motions are determined as hereinafter set forth.

Plaintiffs David St. Louis and Kareem Braxton commenced this action to recover damages for personal injuries they allegedly sustained in a motor vehicle accident on March 6, 2021, when the vehicle owned and operated by Defendant Guerlyne Charlot, in which Plaintiffs were passengers, came into contact with a vehicle owned and operated by Defendant Vakhtang Revishvili.

Plaintiffs allege that they suffered "serious injuries," as defined by Insurance Law § 5102 (d). There are nine categories of serious injury per that statutory provision. Defendant Revishvili now moves, and Defendant Charlot now cross-moves (respectively Motion Sequence Nos. 3 and 4), for summary judgment dismissing the complaint, claiming that both Plaintiffs failed to meet the "serious injury" threshold required by Insurance Law § 5104 (a), as defined in § 5102 (d).

In Plaintiffs' joint bill of particulars, Plaintiff Braxton, who was about 27 years old at the [*2]time of the accident, alleged that he sustained injuries in the accident to the cervical spine, lumbar spine, thoracic spine, and right shoulder. He asserted that he was confined to his bed for thirteen weeks and confined to home for approximately fourteen weeks following the accident, leaving him partially incapacitated since the accident (see NYSCEF Doc No. 69, bill of particulars ¶¶ 10-13).

As for serious injury threshold categories, Plaintiff Braxton claimed 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; and 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 90 days during the 180 days immediately following the occurrence of the injury or impairment ("90/180") (see id. ¶ 20).

In moving for summary judgment, Defendant Revishvili relied on an affirmed independent medical examination (IME) report prepared by Dr. Thomas P. Nipper, a Board-certified orthopedic surgeon, who examined Plaintiff Kareem Braxton on November 13, 2023 (see NYSCEF Doc No. 73). Dr. Nipper detailed his examination of Plaintiff, related his findings, and set forth conclusions. Defendant Revishvili also relied on affirmed reports prepared by Dr. Michael Setton, D.O., a Board-certified radiologist, who evaluated MRI imaging of Plaintiff Braxton's cervical spine, lumbar spine, and right shoulder (see NYSCEF Doc No. 74). As well, Defendant Revishvili relied on the certified transcript of the examination before trial deposition of Plaintiff conducted on September 19, 2023 (see NYSCEF Doc No. 75).

Dr. Thomas P. Nipper's IME Report

Dr. Nipper noted that Plaintiff Braxton was a 30-year-old male, 6'3" tall, weighing 200 pounds. Examination of the cervical spine revealed the following ranges of motion as measured with a goniometer: flexion to 50 degrees, extension to 60 degrees, right and left lateral flexion to 45 degrees, and right and left rotation to 80 degrees, which Dr. Nipper considered to be all within normal limits. The compression test was negative. Examination of Plaintiff's lumbar spine revealed flexion to 50 degrees, extension to 25 degrees, and right and left lateral flexion to 25 degrees, which Dr. Nipper considered to be all normal ranges of motion. The straight leg raise test was negative bilaterally (see NYSCEF Doc No. 73).

Examination of Plaintiff Braxton's left shoulder revealed flexion and abduction to 180 degrees, adduction to 30 degrees, internal rotation to the L1 level, and external rotation to 90 degrees, all within normal limits. Impingement Sign, Apprehension Test, and Speed's Test were all negative (id.).

Dr. Nipper opined that Plaintiff's alleged injuries to the cervical spine, lumber spine, and left shoulder had "fully resolved." However, the bill of particulars identified the right shoulder as injured, and Dr. Nipper did not examine or measure the right shoulder (id.).

Dr. Michael Setton's MRI Reports

Dr. Setton reviewed MRI imaging of Plaintiff's cervical spine, lumbar spine, and right shoulder taken one month after the subject accident. He observed degenerative changes and opined that there was no evidence of acute fracture. He concluded that the MRI findings were not causally related to the subject accident (see NYSCEF Doc No. 74).

Examination Before Trial Deposition

Plaintiff Braxton testified that he went to the emergency room following the accident and [*3]was discharged the same evening. He subsequently sought treatment at a physical therapy facility but ceased treatment after four or five months. He did not undergo surgery. At the time of the accident, he was employed as an auto technician for U-Haul, and he testified that he did not miss work as a result of the accident and has remained employed with U-Haul (see NYSCEF Doc No. 75).

Defendant Charlot cross-moved for summary judgment (see NYSCEF Doc No. 79), adopting the arguments and evidence submitted by co-Defendant Revishvili and seeking the same relief. In addition, Charlot submitted a reply affirmation, emphasizing that her cross-motion should be deemed timely and considered on the merits under CPLR 2214 and that any technical deficiencies in labeling should be disregarded under CPLR 2001 (see NYSCEF Doc No. 135). Said defendant further argued that Plaintiffs' medical submissions, including affirmations by Dr. Gordon C. Davis (NYSCEF Doc No. 113) and Dr. Priyesh Patel (NYSCEF Doc No. 116), were insufficient, speculative, and failed to explain a three-year gap in treatment, rendering them inadequate to raise a triable issue of fact.

In Plaintiffs' joint bill of particulars (NYSCEF Doc No. 69), Plaintiff David St. Louis alleged injury to his cervical spine and lumbar spine as a result of the March 6, 2021 motor vehicle accident. Plaintiff St. Louis stated that at the time of the occurrence he was 38 years old. As did Plaintiff Braxton, Plaintiff St. Louis asserted that his injuries constituted serious injury under the categories of 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; and 90/180 (see id., bill of particulars ¶ 20).

In support of his motion for summary judgment, Defendant Revishvili relied on an affirmed IME report based on a December 11, 2023 orthopedic evaluation of Plaintiff, prepared by Dr. Thomas P. Nipper (see NYSCEF Doc No. 70). Said Defendant also offered affirmed MRI reports of Dr. Michael Setton, who evaluated MRI imaging of Plaintiff St. Louis's cervical spine and lumbar spine (see NYSCEF Doc No. 71). Finally, Defendant Revishvili also relied on Plaintiff St. Louis's examination before trial deposition conducted on March 20, 2024 (see NYSCEF Doc No. 72).

Dr. Thomas P. Nipper's IME Report

In his report, Dr. Nipper noted that Plaintiff St. Louis displayed normal appearance and posture during the examination, lacking any limp or antalgic gate. Dr. Nipper found normal ranges of motion in both Plaintiff St. Louis's cervical spine and lumbar spine. Dr. Nipper concluded in his report that Plaintiff St. Louis's injuries were fully resolved, and Plaintiff St. Louis "did not sustain any significant or permanent injury as a result of the motor vehicle accident" (NYSCEF Doc No. 70 at 2).

Dr. Michael Setton's MRI Reports

In his reports, Dr. Setton found the April 17, 2021 MRI of Plaintiff St. Louis to show no osseous or soft tissue injury to Plaintiff's cervical spine related to the March 6, 2021 motor vehicle accident. Similarly, Dr. Setton found no evidence of osseous or soft tissue injury resulting from the March 6, 2021 motor vehicle accident in Plaintiff's lumbar spine based on the April 17, 2021 MRI. (See NYSCEF Doc No. 71.)

Examination Before Trial Deposition

Defendant Revishvili argues that at Plaintiff St. Louis's examination before trial, he testified that he did not miss work as a result of the motor vehicle accident (NYSCEF Doc No. 65 at 3, 12). Said Defendant argues that this testimony is dispositive of Plaintiff St. Louis's 90/180 claim and, that by working, Plaintiff St. Louis does not qualify for a serious injury determination as Plaintiff does not meet the standard requiring he be "prevent[ed] . . . 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]).

In its cross-motion for summary judgment (NYSCEF Doc No. 79), Defendant Charlot argued that Plaintiff David St. Louis did not meet the serious injury threshold required by Insurance Law § 5102 (d). Plaintiff St. Louis opposed Defendant Charlot's cross-motion with the same argument discussed above in relation to Plaintiff Braxton — that the cross-motion was improperly interposed. Defendant Charlot's arguments in reply are the same as those discussed above. Also, Defendant Charlot argued that Plaintiff St. Louis's medical evidence was insufficient and failed to explain a three-year gap in treatment, rendering it inadequate to raise a triable issue of fact. (See NYSCEF Doc No. 135.)

Plaintiffs argue that Defendants failed to meet their prima facie burden of establishing that neither plaintiff sustained a "serious injury" under Insurance Law § 5102 (d). Plaintiffs assert that the cross-motion by Defendant Charlot is procedurally defective, as a cross-motion may not be made against a non-moving party, citing Mango v Long Is. Jewish-Hillside Med. Ctr. (123 AD2d 843 [2d Dept 1986]), and Terio v Spodek (25 AD3d 781 [2d Dept 2006]).

Plaintiff Kareem Braxton

With respect to Plaintiff Braxton, Plaintiffs argue that Dr. Nipper's failure to examine Plaintiff Braxton's right shoulder, alleged in the bill of particulars to have been injured, and instead examining the right shoulder, must result in the motion being denied as Defendants have failed to meet their burden. Plaintiffs also discuss that Dr. Nipper did not examine Plaintiff Braxton's thoracic spine, which Plaintiff noted in the bill of particulars, failed to review medical records, and conducted his examination nearly three years after the accident, offering no basis to conclude when Plaintiff's injuries allegedly resolved.

Plaintiffs argue that Dr. Setton's failure to opine whether the pre-existing degenerative findings he identified were exacerbated by the subject accident necessarily means that Defendants have failed to meet their prima facie burden, citing Pero v Transervice Logistics, Inc. (83 AD3d 681 [2d Dept 2011]). Plaintiffs further contend that Dr. Setton's conclusion of pre-existing degeneration directly conflicts with Dr. Nipper's report on Plaintiff Braxton, which found his injuries to be fully resolved without identifying any pre-existing conditions. Plaintiffs assert that these contradictory reports raise questions of facts. In support of this, Plaintiffs submit affirmations from Dr. Gordon Davis and Dr. Priyesh Patel, affirmed MRI reports, Plaintiff Braxton's affidavit, treatment records, and deposition testimony.

Plaintiff David St. Louis

As to Plaintiff St. Louis, Plaintiffs maintain that Dr. Nipper's IME report was deficient: he examined Plaintiff nearly three years after the accident, he did not review medical records, he confirmed injuries to the cervical and lumbar spines, and he did not perform neurological testing. Dr. Setton's reports were criticized for being in conflict with Dr. Nipper, who is claimed to have [*4]confirmed causation of injuries from the accident.

While denominated as a "cross-motion," indeed Defendant Charlot's motion is one for relief, which was properly interposed under CPLR Article 22. It was served and filed in February 2025 and did not come on for oral argument until September 2025. This timing qualifies it as a motion (see CPLR 2214) regardless of its nomenclature (see id. 2101 [f]).

On a motion for summary judgment seeking dismissal of a complaint on the ground that a plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d), the moving defendant bears the initial burden of establishing prima facie that the plaintiff did not sustain such an injury as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). If the defendant meets this burden, the burden shifts to the plaintiff to raise a triable issue of fact. (see Franchini v Palmieri, 1 NY3d 536 [2003]; Grasso v Angerami, 79 NY2d 813 [1991]). Where a defendant fails to meet its prima facie burden, the court must deny the motion regardless of the sufficiency of the plaintiff's opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Detoma v Dobson, 214 AD3d 949 [2d Dept 2023]).

In order to prevail on a summary judgment motion for a serious injury threshold case, Defendants must demonstrate that Plaintiff failed to meet any of the nine categories of serious injury set forth by Insurance Law § 5102 (d):

(d) "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.

Plaintiffs did not claim death, dismemberment, significant disfigurement, a fracture, or loss of a fetus — just 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; and 90/180.

Plaintiff Kareem Braxton

Plaintiff Braxton alleged injuries to the cervical spine, lumbar spine, thoracic spine, and right shoulder in the bill of particulars. However, Defendants' orthopedic expert, Dr. Nipper, examined Plaintiff's left shoulder instead of the right shoulder, and did not address claimed injuries to the thoracic spine. Where a defendants' medical expert fails to address all the injuries alleged in the bill of particulars, the motion must be denied, as defendants have failed to meet their prima facie burden (see Biancospino v Gonzalez, 105 AD3d 985 [2d Dept 2013]; Robinson v Lawrence, 99 AD3d 980 [2d Dept 2012]; Bright v Moussa, 72 AD3d 859 [2d Dept 2010]; Encarnacion v Smith, 70 AD3d 628 [2d Dept 2010]). This applies also to Dr. Setton, who did not opine regarding the thoracic spine (see Menezes v Khan, 67 AD3d 654 [2d Dept 2009]; [*5]Takaroff v A.M. USA, Inc., 63 AD3d 1142 [2d Dept 2009]; Jensen v Nicmanda Trucking, Inc., 47 AD3d 769 [2d Dept 2008]).

Furthermore, Defendants failed to establish prima facie that Plaintiff Braxton's alleged spinal and shoulder injuries were not causally related to the subject accident. While Dr. Setton attributed certain MRI findings to pre-existing degeneration, he did not address whether the accident exacerbated those conditions, despite the assertion in the bill of particulars that the injuries resulted in "aggravation or exacerbation of a prior "condition(s)" (NYSCEF Doc No. 69, bill of particulars ¶ 6). A defendant must affirmatively address and rule out exacerbation of a pre-existing injury in order to satisfy its burden of demonstrating a lack of a triable issue of fact on moving for summary judgment where exacerbation has been claimed by the plaintiff (see Liburd v Mondal, 215 AD3d 655 [2d Dept 2023]; D'Augustino v Bryan Auto Parts, Inc., 152 AD3d 648 [2d Dept 2017]).

As Defendants have not eliminated triable issues of fact as to whether Plaintiff Braxton sustained serious injuries to the cervical spine, lumbar spine, thoracic spine and right shoulder that were proximately caused or exacerbated by the subject accident, Defendants have failed to establish entitlement to summary judgment as a matter of law. Further, because Defendants have failed to establish that Plaintiff did not sustain a serious injury under the permanent consequential limitation or significant limitation categories, it is unnecessary to reach the 90/180-day category or to consider the sufficiency of Plaintiff's opposition (see Curiale v Delfavero, 211 AD3d 905 [2d Dept 2022]). The issue of serious injury must be resolved at trial. If Plaintiff Braxton establishes a serious injury under any one category, he is entitled to seek recovery for all injuries incurred as a result of the accident (see O'Neill v O'Neill, 261 AD2d 459 [2d Dept 1999]).

Plaintiff David St. Louis

Defendants argue that the IME report and MRI reports pertaining to Plaintiff St. Louis meet the standards for summary judgment. However, although they may be sufficient to establish that Plaintiff St. Louis failed to meet the permanent loss, permanent limitation, and significant limitation categories defined by Insurance Law § 5102 (d), Defendants still bear the burden of making a prima facie showing that he did not sustain a serious injury as defined by the 90/180 category. In general, defendants often rely on deposition testimony from plaintiffs to establish a prima facie case that the 90/180 requirement has not been satisfied (see Amato v Gorecik, 167 AD3d 557 [2d Dept 2018]).

In the instant case, Plaintiff St. Louis claimed in the bill of particulars that he was "confined to bed for approximately sixteen (16) weeks" and "confined to home for approximately eighteen (18) weeks" (NYSCEF Doc No. 69, bill of particulars ¶ 12). He was "incapacitated from work for approximately eighteen (18) weeks" (id. ¶13). If accurate, this period of confinement would meet the definition of the 90/180 category of serious injury defined by Insurance Law § 5102 (d). Defendants assert that Plaintiff did not miss any work as a result of the accident (see NYSCEF Doc no. 65 at 5). However, when asked in this examination before trial, Plaintiff St. Louis stated that he did not remember if he missed time from work as a result of the accident (see NYSCEF Doc No. 72 at 23-24). Aside from this brief exchange wherein Plaintiff St. Louis was unable to give specific details about missed work, Defendants did not ask any specific questions regarding the 180-day period, and Defendants also failed to directly inquire about the 18 weeks of incapacitation claimed in Plaintiffs' bill of particulars.

Moreover, Plaintiff St. Louis testified to seeking physical therapy treatment four times [*6]per week for four to five months following the accident (see id. at 25). Further, Plaintiff St. Louis claimed in his deposition that, after the accident, "I cannot play with my kids, I cannot do dish washing. . . . I cannot drive for a long period of time. . . . I cannot jog. . . . I used to carry my kids, I can no longer do that" (NYSCEF Doc No. 72 at 33). Defendants failed to sufficiently ask questions addressing these limitations in relation to the 180-day period to establish that Plaintiff did not meet the 90-day burden (such as comparing the stated post-accident activities with pre-accident activities or inquiring directly about the specifics of Plaintiff St. Louis's eighteen weeks of home confinement claimed in the bill of particulars).

Here, while Defendants made out a prima facie case that Plaintiff St. Louis did not meet the statutory requirements for serious injury under permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; and significant limitation of use of a body function or system, they fell short with respect to 90/180, especially given the lack of direct questioning regarding the 180-day period immediately following the accident.

The Court finds that Defendants did not establish a prima facie case that Plaintiff St. Louis failed to meet the 90-day requirement (see Jong Cheol Yang v Grayline NY Tours, 186 AD3d 1501 [2d Dept 2020] [holding that defendants failed to establish prima facie case for summary judgment under the 90/180 category due to lack of sufficient deposition testimony about plaintiff's pre- and post-accident activities]; Aujour v Singh, 90 AD3d 686 [2d Dept 2011] [defendant's doctor did not relate findings to post-accident period where plaintiff claimed confinement to home for 120 days]; Encarnacion v Smith, 70 AD3d 628 [in light of bill of particulars allegation regarding confinement to bed and home, defendants' doctors needed to address 90/180 claim]). Thus, Defendants have failed to establish as a matter of law that Plaintiff St. Louis did not suffer a "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]).

With defendants lacking a prima facie case vis-à-vis 90/180 on their motions for summary judgment, it is irrelevant what plaintiffs offered regarding the other claimed categories (see Diaz v Nightingale Bakery & Beverage Distrib., Inc., 241 AD3d 642 [2d Dept 2025]).

As with respect to Plaintiff Braxton, the issue of serious injury of Plaintiff St. Louis must be resolved at trial. If he establishes a serious injury under any one category, he is entitled to seek recovery for all injuries incurred as a result of the accident (see O'Neill v O'Neill, 261 AD2d 459).

Accordingly, it is hereby ORDERED as follows: Defendant Vakhtang Revishvili's motion for summary judgment dismissing the complaint (Motion Seq. No. 3) is DENIED. Further, it is hereby ORDERED that Defendant Guerlyne Charlot's cross-motion for summary judgment dismissing the complaint (Motion Seq. No. 4) is likewise DENIED.