The following numbered papers were used on this motion: NYSCEF Document Nos. 84-93, 97-98, 100-102.

Upon the foregoing papers, the Court having elected to determine the within motion on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part II (Motions & Special Proceedings), Subpart C (Appearances & Post-Order Matters), Section 6 (Personal Appearances) [*2]("All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission."), and due deliberation having been had thereon, the within motion is determined as follows.

Defendants Black Horse Carriers LLC, Penske Logistics Inc., Ryder Truck Rental Inc. d/b/a Ryder Transportation Services Inc., and Henry R. Nunez move for summary judgment dismissing the complaint on the asserted ground that Plaintiff, claiming personal injuries from a Dec. 19, 2021 motor vehicle accident, did not sustain therefrom a serious injury as defined in Insurance Law § 5102 (d) and required by Insurance Law § 5104 (a). Defendant Ryder Truck Rental Inc. d/b/a Ryder Transportation Services Inc. also moves for summary judgment dismissing the complaint on the asserted ground that claims against it are barred by the Graves Amendment (46 USC § 30106).

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 54, 60 [2d Dept 2007]). A moving defendant bears the initial burden of establishing, by the submission 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 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]).

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).

Plaintiff asserted in his bills of particulars that he sustained a serious injury falling within the ambit of the categories of significant disfigurement; 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 ninety days during the one hundred eighty days immediately following [*3]the occurrence of the injury or impairment (see NYSCEF Doc No. 88).

Among the injuries claimed by Plaintiff in his bills of particulars is dizziness (see NYSCEF Doc No. 11). Defendants' medical expert, Dr. Eric Freeman, failed to address this (see NYSCEF Doc No. 90). Inasmuch as case law holds that a defendant fails to show lack of serious injury on a motion for summary judgment where alleged head injuries are not addressed, Dr. Freeman's failure to address the claimed dizziness denudes moving Defendants of a prima facie showing of lack of serious injury (see Rosales v Rivera, 176 AD3d 753 [2d Dept 2019]; Adams v Dura Cab Corp., 152 AD3d 634 [2d Dept 2017]; Safer v Silbersweig, 70 AD3d 921 [2d Dept 2010]).

Moving Defendants' medical expert, Dr. Eric Freeman, noted significant reduced ranges of motion on Aug. 6, 2025, more than three and a half years after the accident: cervical flexion, 40/50 degrees (20% limitation); lumbar flexion, 45/60 degrees (25% limitation); lumbar extension, 10/25 degrees (60% limitation); lumbar right lateral bending, 15/25 degrees (40% limitation); and lumbar left lateral bending, 20/25 degrees (20% limitation). These significant limitations found by Defendants' own medical expert also denude moving Defendants of a prima facie showing of lack of serious injury (see Curiale v Delfavero, 211 AD3d 905 [2d Dept 2022]; Tchevskaia v Chase, 15 AD3d 389 [2d Dept 2005]; McDowall v Abreu, 11 AD3d 590 [2d Dept 2004]; Meyer v Gallardo, 260 AD2d 556 [2d Dept 1999]).

Dr. Freeman attempted to minimize the significance of these limitations in terms of the subject Dec. 19, 2021 motor vehicle accident — calling into question whether the limitations were proximately caused by it — by noting a prior, 2017 motor vehicle accident. However, his attributions of the limitations to the 2017 accident were equivocal (see Luigi v Avis Cab Corp., 96 AD3d 809 [2d Dept 2012}; Glynn v Hopkins, 55 AD3d 498 [1st Dept 2008]). Specifically, in his Aug. 6, 2025 report, Dr. Freeman wrote, "There was a mild subjective range of motion loss of both the cervical and lumbar spine[^[FN1] ] [which] could be attributable within a reasonable medical certainty to the preexisting condition" (NYSCEF Doc No. 90 at 3). In his Oct. 27, 2025 report, Dr. Freeman wrote, "Within a reasonable medical certainty, the mild subjective range of motion loss could be attributable to the preexisting condition. . ." (NYSCEF Doc No. 90 at 2). Usage of "could" does not rise to the level of proof necessary to establish a lack of proximate causation.

Moving Defendants failed to make out a prima facie case that Plaintiff did not sustain a serious injury proximately resulting from the subject Dec. 19, 2021 motor vehicle accident falling within the ambit of the serious injury categories of permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system. Therefore, the Court need not review any papers submitted by Plaintiff or even determine whether any were submitted (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Curiale v Delfavero, 211 AD3d 905). Consideration of any other claimed categories of serious injury is unnecessary (id.). [*4]At trial, Plaintiff is entitled to seek recovery for all injuries incurred as a result of the accident, so long as he establishes that any injury is a serious one as defined in Insurance Law § 5102 (d) (see Nussbaum v Chase, 166 AD3d 638 [2d Dept 2018]; Prieston v Massaro, 107 AD2d 742 [2d Dept 1985]).

With respect to the issue of lack of vicarious liability on the part of moving Defendant Ryder Truck Rental Inc. based on the Graves Amendment (46 USC § 30106), said Defendant has made a showing that it is engaged in the trade or business of leasing motor vehicles and is a nationally owned commercial lessor. Further, a review of the repair and maintenance records pertaining to the subject vehicle reveals that it was in good working order and condition on the date of the subject accident. Defendant Ryder Truck Rental Inc.'s prima facie showing of lack of liability under the Graves Amendment has not been rebutted by Plaintiff (see De Rodriguez v EAN Holdings, LLC, 240 AD3d 665 [2d Dept 2025]; Graham v Dunkley, 50 AD3d 55 [2d Dept 2008]).

Accordingly, it is hereby ORDERED that the within motion by Defendants Black Horse Carriers LLC, Penske Logistics Inc., Ryder Truck Rental Inc. d/b/a Ryder Transportation Services Inc., and Henry R. Nunez seeking summary judgment dismissing Plaintiff's complaint as against them is GRANTED SOLELY TO THE EXTENT that the complaint is dismissed as against Ryder Truck Rental Inc. d/b/a Ryder Transportation Services Inc. due to lack of liability under the Graves Amendment. The motion is otherwise denied.

The foregoing constitutes the decision and order of the Court.