Preview
FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E
NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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SANDRA MORALES, AFFIRMATION IN REPLY
Plaintiff,
Index No.: 22167/2019E
- against -
DUSTIN B. LIEBLING and VICTOR P. ESPOSITO ,
Defendant(s).
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Melissa A. Marano, Esq., an attorney duly licensed to practice law before the Courts of
New York State, affirms the following under penalties of perjury:
1. I am associated with Law Office of Dennis C. Bartling attorneys for the defendant
and as such I am familiar with the facts and circumstances of this matter.
2. This Affirmation is respectfully submitted in reply to plaintiff’s opposition.
THE DEFENDANT HAS PROVEN PRIMA FACIE THAT THE PLAINTIFF DID NOT
SUSTAIN A SERIOUS INJURY UNDER THE 90/180 CATEGORY
3. The plaintiff claims that the defendant has failed to meet his burden of proving the
plaintiff did not sustain a “serious injury” under the 90/180 category of the No-Fault Law. The
plaintiff rests this argument on the erroneous assumption that the doctor who conducted the
plaintiff’s IME, Dr. Hillsman, was required to comment on the plaintiff’s ability or inability to
perform substantially all of his material acts that constitute his daily and customary activities
within the first 90 of the first 180 days following the subject accident.
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4. The plaintiff’s argument, that an IME that occurs outside of the 90/180 period,
cannot establish that the plaintiff did not sustain a “serious injury,” is not and cannot be the law
(see Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept 2005].
5. Indeed, this lawsuit was commenced within the statute of limitations but not
until February 21, 2019, approximately two years after three months after the subject
accident. If the state of the law in New York were truly that in order to prove a “serious injury”
under the 90/180 category, a defendant’s medical expert was required to comment on what
the plaintiff was or was not able to do within the first 180 days following the subject accident,
no defendant could ever prove prima facie that the plaintiff did not sustain a “serious injury”
when the plaintiff electively chose to file a lawsuit outside or far from this time frame.
6. There could be no way for a defendant to know they were going to be sued as a
result of a motor vehicle accident. Therefore, a defendant would have no right, no less
standing, to demand that a “potential plaintiff” appear for a medical evaluation within the first
few months following the accident to later be utilized in a “potential lawsuit” when that
defendant was sued by the “potential plaintiff.” Such a requirement is clearly not the legal
mandate.
7. Additionally, there is no requirement that the defendant submit medical
evidence demonstrating the plaintiff did not sustain a serious injury under the 90/180 category
of the insurance law if the plaintiff’s deposition own testimony establishes there is no serious
injury under this category. Small v. City of New York, 148 AD3d 959 [2d Dept. 2017]; John v.
Linden, 124 AD3d 598 [2d Dept. 2015]; Marin v. Ieni, 108 Ad3d 656 [2d Dept. 2013].
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8. Plaintiff’s deposition testimony can establish that the plaintiff did not sustain a
serious injury under the 90/180 day category of Insurance Law. Dutka v. Odierno, 145 AD3d
661 [2d Dept. 2016]; Marin v. Ieni, 108 AD3d 656 [2d Dept. 2013].
9. As such, the defendant can meet their burden of establishing prima facie that
the plaintiff failed to sustain an injury pursuant to the 90/180 category of by submitting the
transcript of the plaintiff’s examination before trial. John v. Linden, 124 A.D.3d 598124 AD3d
598 [2d Dept. 2015]. It is the obligation of the plaintiff to submit “competent medical evidence
sufficient to raise a triable issue of fact as to whether he sustained a medically determined
injury of a nonpermanent nature that prevented him from performing his usual and customary
activities for 90 of the 180 days following the subject accident.” John v. Linden, 124 AD3d 598
[2d Dept. 2015].
10. In Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2d Dept
2008], the Court held that the defendant made a prima facie showing that the plaintiff did not
sustain a “serious injury” under the 90/180 category through the plaintiff’s own testimony. In
so holding, the Court reasoned that the plaintiff, who returned to his job as a welder in only five
weeks, was not prevented from performing “substantially all” of the material acts constituting
his customary daily activities during at least 90 out of the first 180 days following the accident
(citing Letellier v Walker, 22 AD2d 658 [2d Dept 1995]; see also Kuperberg v Mantallbano, 72
AD3d 903 [2d Dept 2010]; Hamilton v Rouse, 46 AD3d 514 [2d Dept 2007]; Rodriguez v Virga, 24
AD3d 650 [2d Dept 2005]; Pierre v Nanton, 279 AD2d 621 [2d Dept 2001]).
11. In Cruz v Rivera, 94 AD3d 576 [1st Dept 2012], the Court held that dismissal of
90/180 claim was warranted in light of the allegation in the plaintiff’s bill of particulars that he
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was confined to bed for only one (1) week, and his deposition testimony that he only missed
about one (1) week of work (see also Melo v Grullon, 101 AD3d 452 [1st Dept 2012]; Ayala v
Cruz, 95 AD3d 699 [1st Dept 2012]).
12. In Nieves v Bus Maintenance Corp., 2015 NY Slip Op 05130 [1st Dept. 2015], the
Appellate Division held that plaintiff did not sustain a 90/180-day serious injury within the
meaning of Insurance Law § 5102(d). Despite the plaintiff missing more than 90 days of work,
the Court held that this not determinative of the issue, and the plaintiff's deposition testimony
and medical records were used to show the plaintiff failed to meet 90/180 (see also Williams v
Perez, 92 AD3d 528 [1st Dept 2012] [“The evidence that plaintiff missed less than 90 days of
work in the 180 days immediately following the accident and indeed otherwise worked “light
duty” is fatal to the 90-180 claim”]; Grant v United Pavers, Inc., 91 AD3d 499 [1st Dept 2012]
[plaintiff missed two (2) months of work and had significant impairment, and was still found to
not mee 90/180]; .
13. Here, the plaintiff testified that:
The last time she was employed was in 2007 as a Home Attendant. (p. 10). She
testified her reason for no longer working had nothing to do with any physical
injuries. (p. 10). While she stated she cleaned houses on occasion, she was not
working or cleaning homes on the date of the collision. (p. 11). On the date of the
accident, she was already receiving disability benefits for bipolar disorder. (p. 11).
She has been receiving benefits since 2008. (p. 11).
She testified that she was confined to her bed for two weeks following the accident.
(p. 46). She is unable to clean her clean her tub and oven, perform household
cleaning or go to the gym since the accident. (pp. 69-70).
14. Regardless of whether Dr. Mannor commented on any alleged limitation
regarding 90 days of the first 180 days (90/180) after the accident; the plaintiff’s own sworn
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testimony shows that this criterion was not met. Despite the fact that defendant’s IME was
held beyond the 180 days following this accident, the Courts have found that a prima facie case
of entitlement to judgment as a matter of law on threshold can be proved by the use of
deposition testimony as to when plaintiff resumed work/school (Richards, supra; Sanchez,
supra; see also Seck v. Balla, 92 AD3d 543 [1st Dept 2012]; Tsamos v. Diaz, 81 AD3d 546 [1st
Dept 2011]; Jang Hwan An v. Parra, 90 AD3d 574 [1st Dept 2011]).
15. In Cantave v Gelle, 60 AD3d 988 [2d Dept 2009], the Court held: “The plaintiff's
current complaints, as set forth in his affidavit, while suggestive of discomfort, do not suggest
the inability to perform substantially all of his usual and customary daily activities (see Ingram v
Doe, 296 AD2d 530 [2d Dept 2002]; Berk v Lopez, 278 AD2d 156 [1st Dept 2000]; Barbarulo v
Allery, 271 AD2d 897 [3d Dept 2000]; Taber v Skulicz, 265 AD2d 902 [4th Dept 1999]).
16. In Marin v Ieni, 108 AD3d 656 [2d Dept 2013], the Court held summary judgment
was properly granted because the defendants met their burden on the 90/180-day claim by
submitting the plaintiff’s deposition testimony, which established that the plaintiff only missed
one week of work and returned to normal duties four weeks after the accident.
17. The plaintiff’s testimony simply does not rise to their being unable to perform
substantially all of the material acts that constitute their customary and daily activities for no
less than 90 out of the first 180 days following the subject accident.
PLAINTIFF’S OPPOSITION PAPERS DIFFER FROM DEPOSITION TESTIMONY
18. Your affirmant respectfully requests that this court not consider the plaintiff’s
affidavit since it is self-serving, post-deposition and contradicts the plaintiff’s prior deposition
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testimony (Kudisch v Grumpy Jack’s, Inc., 112 AD3d 788 [2d Dept 2013]; Mayancela v Almat
Realty Development, LLC, 303 AD2d 207 [1st Dept 2003]).
19. The plaintiff’s self-serving comments concerning the inability to perform
activities or complaints of occasional pain or even recurrent pain, without more, are insufficient
to defeat a motion for summary judgment (Glielmi v Banner, 254 AD2d 255 [2d Dept 1998];
Brantley v NYC Metropolitan Trans. Auth., 48 AD3d 313 [1st Dept 2008]; Uddin v Cooper, 32
AD3d 270 [1st Dept 2006]).
20. Lastly, the plaintiff’s attempts to raise a triable issue of fact by submitting an
affidavit in opposition to their deposition testimony must fail because it departs from their
deposition testimony and must therefore be disregarded by the court in its entirety (Prunty v
Keltie’s Bum Steer, 163 AD2d 595 [2d Dept 1990]).
21. In Thompson v Abbasi, 15 AD3d 95, 101 [1st Dept 2005], the First Department
was presented with a situation similar to Prunty and to the case at bar. The plaintiff submitted
an affidavit in which he described significant curtailment of his activities due to “’excruciating’
pain in his neck” and restricted motion. This conflicted with his earlier deposition testimony
where he only claimed that he experienced some pain in his back while jogging. In rejecting the
affidavit and granting summary judgment to the defendant, the court asserted that:
Plaintiff’s self-serving affidavit, prepared in opposition to defendant’s summary
judgment motion, was clearly tailored to avoid the consequences of his earlier
testimony, and is therefore insufficient to raise an issue of fact.
22. In the case at bar, the plaintiff conceded at their deposition that:
She testified that she was confined to her bed for two weeks following the accident. (p.
46). She is unable to clean her clean her tub and oven, perform household cleaning or
go to the gym since the accident. (pp. 69-70).
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23. However, in the affidavit plaintiff claims she cannot clean, paly ball, mop, do
laundry, go shopping, mostly all for four months after the accident.
24. Plaintiff attempts to re-characterize and exaggerate their injuries in their
affidavit submitted with their opposition papers. Your affirmant respectfully submits that the
plaintiff’s attempts to raise an issue of fact by submitting an affidavit that contradicts their
deposition testimony must fail, and must therefore be disregarded by the court in its entirety
(Prunty v Keltie’s Bum Steer, 163 AD2d 595 [2d Dept 1990]); see also, LoBianco v Lake, 62 AD3d
590 [1st Dept 2009]; Blackmon, supra; Thompson, supra).
PLAINTIFF HAS FAILED TO REBUT ADEQUATELY DEFENDANT’S MEDICAL
DETERMINATION OF A DEGENERATION/PRIOR CONDITION
25. It is well settled that it is the plaintiff’s burden to prove that the plaintiff’s
injuries were proximately caused by the instant auto accident and not a prior injury.
(Finkelshteyn v Harris, 280 AD2d 579 [2d Dept. 2001]; Alcalay v Town of Hempstead, 262 AD2d
258 [2d Dept 1999].
26. In a case where plaintiff injured his back in a prior accident, the Appellate
Division in Cantave v Gelle, 60 AD3d 988, 989 [2d. Dept 2009] also held:
“Neither of the plaintiff's physicians indicated that they reviewed the medical
records arising from that prior accident. Accordingly, their conclusions that the
plaintiff's injuries and limitations were caused solely by the subject accident
were highly speculative (see Moore v Sarwar, 29 AD3d 752 [2006]; Tudisco v
James, 28 AD3d 536 [2006]; Bennett v Genas, 27 AD3d 601 [2006]; Allyn v
Hanley, 2 AD3d 470 [2003]).”
27. The affirmation or affidavit of a plaintiff’s treating physician must establish in
non-conclusory terms the plaintiff’s injuries were caused by the subject accident and address
the plaintiff’s prior and subsequent injuries or degenerative conditions. (Pommells v Perez, 4
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NY3d 566 [2005]; Laurent v McIntosh, 49 AD3d 820 [2d Dept. 2008]. It is not sufficient for the
plaintiff’s treating physicians to base their affidavits and/or affirmations on the plaintiff’s
subjective complaints (Cennamo v Themistokleous, 22 AD3d 700 [2d Dept 2005] citing, Kivlan v
Acevedo, 17 AD3d 321 [2d Dept 2005].
28. In the case of Cavitolo v. Broser, (163 AD3d 913 [2d Dept. 2018]), the Appellate
Division affirmed the lower court’s granting of defendant’s threshold motion holding that the
plaintiff failed to raise a triable issue of fact as the “plaintiff’s expert failed to address the
findings of the defendant’s examining radiologist that the plaintiff’s MRI revealed only pre-
existing degenerative changes.”
29. In the recent case of Mnatcakanova v. Elliot, (174 Ad3d 798 [2d Dept. 2019]), the
Appellate Division held that moving defendant established prima facie that plaintiff’s injuries to
the cervical and thoracolumbar spine and right knee were degenerative and not proximately
caused by the accident. The court held that despite plaintiff submitting medical reports in
opposition of an expert that plaintiff’s injuries were causally connected to the accident:
“the evidence submitted by the plaintiff failed to address the findings of the
moving defendants’ expert that the injuries to her spine and knee were
degenerative in nature.”
30. Even if the plaintiff submits the affidavit of his treating doctor in opposition to a
threshold motion, if the treating “physician fails to address the findings of defendants’
examining radiologist that injuries to [plaintiff’s] cervical and lumbar spines were the result of
pre-existing degenerative disc disease and were unrelated to the subject accident” the affidavit
of plaintiff’s doctor will not raise an issue of fact sufficient to deny defendant’s threshold
motion. Roman v. Fast Lane Care Service, Inc.,46 AD3d 535 [2d Dept. 2007].
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31. In this case defendant submitted the medical review of Dr. Steven Peyser, a
radiologist, who reviewed plaintiff’s Cervical MRI. Dr. Peyser’s impression was: Review of the
MRI of the cervical spine reveals cervical spondylosis, posterior central disc osteophyte
formation at C3-4 through C6-7, degenerative anterior sublaxation at C7-T1 and spondylitic
changes with bulging at T1-2 and T2-3. These findings are most consistent with pre-existing
degenerative type change. No post traumatic type etiologies related to the accident date of
May 3, 2018 can be determined.
32. In addition, Dr. Steven Peyser, reviewed plaintiff’s Right Shoulder MRI films Upon a
review
of plaintiff’s Right Shoulder MRI films, Dr. Peyser’s impression was: Review of the MRI of the
right shoulder reveals hypertrophic change of the acromioclavicular joint consistent with pre-
existing degenerative joint disease. No post traumatic type etiologies related to the accident
date of May 3, 2018 can be determined.
33. While it is argued in opposition that there is a contradiction between Dr. Mannor and
Dr.
Peyser, no conflict exists. Dr. Mannor opined that plaintiff’s sprains and strains were resolved.
Simply stating that their strains were resolved does not demonstrate Dr. Mannor causally
related the accident to the injuries, just that plaintiff’s injuries, whether serious or nor or
related or not resolved. As such, there is no conflict in the medical reports in this case.
34. Here, Dr. Abramov’s conclusions that the plaintiff was asymptomatic at the time
of the subject accident are based solely on what the plaintiff reported to his report fails to
adequately rebut the findings of Dr. Peyser in this case. Instead, Dr. Abramov simply states” If
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the above statements are true and accurate, causality is established between the above state
accident and today’s pathological findings.”
35. “Orthopedic surgeon's conclusion about aggravation of pre-existing injuries …
was speculative and insufficient to show causation within meaning of no-fault law, where his
summary of claimant's prior accidents did not include all of her accidents … and did not indicate
that he had reviewed medical records from prior accidents” (Frisch v Harris, 101 AD3d 941 [2d
Dept 2012]).
36. As defendant met their burden of proof, it is now the plaintiff’s burden to prove
causality in order to defeat defendants’ motion. Because plaintiff cannot prove causality
between the condition claimed and the underlying accident, plaintiff cannot defeat defendant’s
motion for summary judgment (Scotto v Suh, 50 AD3d 1012 [2d Dept 2008]; Gorden v Tibulcio,
50 AD3d 460 [1st Dept 2008]; Lopez v American United Trans., 66 AD3d 407 [1st Dept 2009];
Ronda v Friendly Baptist Church, 52 AD3d 440 [1st Dept 2008]).
HERNIATIONS AND BULGES, SPRAINS/STRAINS, AND RADICULOPATHY, WITHOUT MORE, ARE
INSUFFICIENT TO PIERCE THRESHOLD
37. Proof establishing that the plaintiff sustained a bulging or herniated disc is not
evidence of a serious injury in the absence of objective evidence to the extent of the alleged
physical limitations resulting from the disc injury and its duration. see Scheker v. Brown, 91
AD3d 751 [2d Dept. 2012]; Vilomar v Castillo, 73 AD3d 758 [2d Dept 2010]; Lozusko v Miller.
38. The mere existence of radiculopathy does not constitute a “serious injury” within
the meaning of the no-fault statute’s provision governing the threshold for tort recovery, there
must be objective evidence of the extent or degree of the alleged limitation resulting from the
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injury and its duration (see Furrs v Griffith, 43 AD3d 389 [2d Dept 2007]; Foley v Karvelis, 276
AD2d 666 [2d Dept 2000]).
39. Dr. Mannor found full range of motion in the plaintiff’s cervical spine, thoracic
spine and right shoulder. The Court has held despite the existence of an MRI report that shows
the existence of either herniated or bulging discs, a defendant who submits admissible proof
that shows the plaintiff has a full range of motion, that the plaintiff does not have a disability
that is causally related to subject accident has established a prima facie case that the plaintiff
did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (Kearse v New
York City Transit Authority, 16 AD 3d 45 [2d Dept 2005]; Diaz v Turner, 306 AD2d 241 [2d Dept
2003]; Figueroa v Westbury Trans, 304 AD2d 614 [2d Dept 2003].
40. Herniations alone do not constitute a serious injury (Pommells v Perez, 4 NY3d
566 [2005]; Onishi v N & B Taxi, Inc., 51 AD3d 594 [1st Dept 2008]; Park v Champagne, 34 AD3d
274 [1st Dept 2006];
41. Spinal sprains and strains are not serious injuries (Diaz v Speedy Rent a Car, 259
AD2d 726 [2d Dept 1999]; Barrett v Howard, 202 AD2d 383 [2d Dept 1994]; Rhind v Naylor, 187
AD2d 498 [2d Dept 1992]; Delfino v Davey, 159 AD2d 604 [2d Dept 1992]; Cruz v Lugo, 67 AD3d
495 [1st Dept 2009]).
THE DEFENDANT HAS ALSO ESTABLISHED PRIMA FACIE THAT THE PLAINTIFF DID NOT
SUSTAIN A “SERIOUS INJURY” UNDER THE PERMANENT CONSEQUENTIAL LIMITATION OR
SIGNIFICANT LIMITATION CATEGORIES.
42. Dr. Mannor’s report proves prima facie that the plaintiff sustained neither a
“permanent consequential limitation of use of a body organ or member” nor a “significant
limitation of use of a body function or system” within the meaning of the Insurance Law. The
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plaintiff’s own deposition testimony establishes that she did not suffer a “serious injury” within
the 90/180 category of the Insurance Law.
43. The Courts have continuously held that such independent examinations that
occur more than a year, and often later, after the subject accident satisfy the defendant’s
burden of proof that the plaintiff did not sustain a “serious injury” where the examining
physician finds a full range of motion in the body parts, members, functions or systems that the
plaintiff alleges to have injured (Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept
2005]; Diaz v Turner, 306 AD2d 241 [2d Dept 2003]; Figueroa v. Westbury Trans, Inc., 304 AD2d
614 [2d Dept 2003]; Fauk v Jenkins, 301 AD2d 564 [2d Dept 2003]; Bernabel v Perulllo, 300
AD2d 330 [2d Dept 2002]; Malpica v Lavergne, 294 AD2d 340 [2d Dept 2002]; Brown v Achy, 9
AD3d 30 [1st Dept 2004]).
44. In Turchuk v Town of Wallkill, 255 AD2d 576 (2d Dept 1998) the Court held:
“In support of its motion for summary judgment, the defendant submitted a
report from a physician who examined the plaintiff and found that although the
plaintiff had sustained a contusion to the right shoulder, she no longer showed
any objective signs of pathology. The defendant therefore demonstrated prima
facie entitlement to summary judgment” (citing, Licari v Elliott, 57 NY2d 230
[1982]; Stallone v County of Suffolk, 209 AD2d 403 [2d Dept 1994]; Pagano v
Kingsbury, 182 AD2d 268 [2d Dept 1992]; Forte v Vaccaro, 175 AD2d 153 [2d
Dept 1991]).
45. Under the “significant limitation of use” category the Court has held:
“the word ‘significant’ as used in the statute pertaining to ‘limitation of use of a
body function or system’ should be construed to mean something more than a
minor limitation of use. We believe that a minor, mild or slight limitation of use
should be classified as insignificant within the meaning of the statute” (Licari v
Elliott, 57 NY2d 230 [1982]).
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46. In order to establish a serious injury under the No-Fault Law, the plaintiff must
provide objective evidence of the plaintiff’s limitations that are contemporaneous with the
subject accident (Knox v Lennihan, 65 AD3d 615 [2d Dept 2009]; Eldrainy v Hassain, 56 AD3d
419 [2d Dept 2008]; Morris v Edmond, 48 AD3d 432 [2d Dept 2008]). The plaintiff has failed to
offer any objective evidence of any limitations contemporaneous with the subject accident.
47. The Court has held, if a plaintiff’s bodily limitation is substantial in degree, but
only fleeting in duration, then the plaintiff’s alleged injury does not qualify as a “serious injury”
(Thrall v City of Syracuse, 60 NY2d 950, revg. 96 AD2d 715 [1983] [medical evidence that injured
party had full range of motion in April 1979 refutes claim that injury sustained in January 1979
significantly limited the use of his arms and shoulder]; Ciaccio v J & R Home Improvements, 149
AD2d 558 [2d Dept 1989] [evidence that injured party’s range of motion had greatly improved
two weeks after the accident and was excellent four months thereafter negates claim of
significant limitation]).
48. The findings of Dr. Mannor of full ranges of motion of the cervical, thoracic
spines and shoulder “actually refutes” any claim by the plaintiff that his alleged injuries were
“significant” (Thrall v City of Syracuse, 60 NY2d 950 [1983] revg. 96 AD2d 715 [4th Dept] for
reasons cited in the dissent]).
49. The Court has held that a defendant who submits admissible proof that shows
the plaintiff has a full range of motion has met its prima facie burden of showing the plaintiff
did not sustain a “serious injury” despite the existence of an MRI report that shows the
existence of either herniated or bulging discs (Kearse v New York City Transit Authority, 16
AD3d 45 [2d Dept 2005].
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WHEREFORE, it is respectfully requested that movant’s motion be granted in its
entirety, that plaintiff’s complaint and any and all cross-claims against movant be dismissed in
their entirety with prejudice, and for such other and further relief as the Court deems just and
proper.
___________________________
Melissa A. Marano, Esq.
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WORD COUNT CERTIFICATION
Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the
word count limit of 4,200 words set forth therein. The total number of words in this
Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature
blocks, is 3,910 pursuant to the word count in Microsoft Word, the word-processing system
used to prepare the document.
Dated: Hicksville, New York
March 8, 2021
________________________________
By: Melissa A. Marano, Esq.
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Preview
FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX --------------------------------------------------------------------x SANDRA MORALES, AFFIRMATION IN REPLY Plaintiff, Index No.: 22167/2019E - against - DUSTIN B. LIEBLING and VICTOR P. ESPOSITO , Defendant(s). --------------------------------------------------------------------x Melissa A. Marano, Esq., an attorney duly licensed to practice law before the Courts of New York State, affirms the following under penalties of perjury: 1. I am associated with Law Office of Dennis C. Bartling attorneys for the defendant and as such I am familiar with the facts and circumstances of this matter. 2. This Affirmation is respectfully submitted in reply to plaintiff’s opposition. THE DEFENDANT HAS PROVEN PRIMA FACIE THAT THE PLAINTIFF DID NOT SUSTAIN A SERIOUS INJURY UNDER THE 90/180 CATEGORY 3. The plaintiff claims that the defendant has failed to meet his burden of proving the plaintiff did not sustain a “serious injury” under the 90/180 category of the No-Fault Law. The plaintiff rests this argument on the erroneous assumption that the doctor who conducted the plaintiff’s IME, Dr. Hillsman, was required to comment on the plaintiff’s ability or inability to perform substantially all of his material acts that constitute his daily and customary activities within the first 90 of the first 180 days following the subject accident. 1 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 4. The plaintiff’s argument, that an IME that occurs outside of the 90/180 period, cannot establish that the plaintiff did not sustain a “serious injury,” is not and cannot be the law (see Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept 2005]. 5. Indeed, this lawsuit was commenced within the statute of limitations but not until February 21, 2019, approximately two years after three months after the subject accident. If the state of the law in New York were truly that in order to prove a “serious injury” under the 90/180 category, a defendant’s medical expert was required to comment on what the plaintiff was or was not able to do within the first 180 days following the subject accident, no defendant could ever prove prima facie that the plaintiff did not sustain a “serious injury” when the plaintiff electively chose to file a lawsuit outside or far from this time frame. 6. There could be no way for a defendant to know they were going to be sued as a result of a motor vehicle accident. Therefore, a defendant would have no right, no less standing, to demand that a “potential plaintiff” appear for a medical evaluation within the first few months following the accident to later be utilized in a “potential lawsuit” when that defendant was sued by the “potential plaintiff.” Such a requirement is clearly not the legal mandate. 7. Additionally, there is no requirement that the defendant submit medical evidence demonstrating the plaintiff did not sustain a serious injury under the 90/180 category of the insurance law if the plaintiff’s deposition own testimony establishes there is no serious injury under this category. Small v. City of New York, 148 AD3d 959 [2d Dept. 2017]; John v. Linden, 124 AD3d 598 [2d Dept. 2015]; Marin v. Ieni, 108 Ad3d 656 [2d Dept. 2013]. 2 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 8. Plaintiff’s deposition testimony can establish that the plaintiff did not sustain a serious injury under the 90/180 day category of Insurance Law. Dutka v. Odierno, 145 AD3d 661 [2d Dept. 2016]; Marin v. Ieni, 108 AD3d 656 [2d Dept. 2013]. 9. As such, the defendant can meet their burden of establishing prima facie that the plaintiff failed to sustain an injury pursuant to the 90/180 category of by submitting the transcript of the plaintiff’s examination before trial. John v. Linden, 124 A.D.3d 598124 AD3d 598 [2d Dept. 2015]. It is the obligation of the plaintiff to submit “competent medical evidence sufficient to raise a triable issue of fact as to whether he sustained a medically determined injury of a nonpermanent nature that prevented him from performing his usual and customary activities for 90 of the 180 days following the subject accident.” John v. Linden, 124 AD3d 598 [2d Dept. 2015]. 10. In Sanchez v Williamsburg Volunteer of Hatzolah, Inc., 48 AD3d 664 [2d Dept 2008], the Court held that the defendant made a prima facie showing that the plaintiff did not sustain a “serious injury” under the 90/180 category through the plaintiff’s own testimony. In so holding, the Court reasoned that the plaintiff, who returned to his job as a welder in only five weeks, was not prevented from performing “substantially all” of the material acts constituting his customary daily activities during at least 90 out of the first 180 days following the accident (citing Letellier v Walker, 22 AD2d 658 [2d Dept 1995]; see also Kuperberg v Mantallbano, 72 AD3d 903 [2d Dept 2010]; Hamilton v Rouse, 46 AD3d 514 [2d Dept 2007]; Rodriguez v Virga, 24 AD3d 650 [2d Dept 2005]; Pierre v Nanton, 279 AD2d 621 [2d Dept 2001]). 11. In Cruz v Rivera, 94 AD3d 576 [1st Dept 2012], the Court held that dismissal of 90/180 claim was warranted in light of the allegation in the plaintiff’s bill of particulars that he 3 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 was confined to bed for only one (1) week, and his deposition testimony that he only missed about one (1) week of work (see also Melo v Grullon, 101 AD3d 452 [1st Dept 2012]; Ayala v Cruz, 95 AD3d 699 [1st Dept 2012]). 12. In Nieves v Bus Maintenance Corp., 2015 NY Slip Op 05130 [1st Dept. 2015], the Appellate Division held that plaintiff did not sustain a 90/180-day serious injury within the meaning of Insurance Law § 5102(d). Despite the plaintiff missing more than 90 days of work, the Court held that this not determinative of the issue, and the plaintiff's deposition testimony and medical records were used to show the plaintiff failed to meet 90/180 (see also Williams v Perez, 92 AD3d 528 [1st Dept 2012] [“The evidence that plaintiff missed less than 90 days of work in the 180 days immediately following the accident and indeed otherwise worked “light duty” is fatal to the 90-180 claim”]; Grant v United Pavers, Inc., 91 AD3d 499 [1st Dept 2012] [plaintiff missed two (2) months of work and had significant impairment, and was still found to not mee 90/180]; . 13. Here, the plaintiff testified that: The last time she was employed was in 2007 as a Home Attendant. (p. 10). She testified her reason for no longer working had nothing to do with any physical injuries. (p. 10). While she stated she cleaned houses on occasion, she was not working or cleaning homes on the date of the collision. (p. 11). On the date of the accident, she was already receiving disability benefits for bipolar disorder. (p. 11). She has been receiving benefits since 2008. (p. 11). She testified that she was confined to her bed for two weeks following the accident. (p. 46). She is unable to clean her clean her tub and oven, perform household cleaning or go to the gym since the accident. (pp. 69-70). 14. Regardless of whether Dr. Mannor commented on any alleged limitation regarding 90 days of the first 180 days (90/180) after the accident; the plaintiff’s own sworn 4 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 testimony shows that this criterion was not met. Despite the fact that defendant’s IME was held beyond the 180 days following this accident, the Courts have found that a prima facie case of entitlement to judgment as a matter of law on threshold can be proved by the use of deposition testimony as to when plaintiff resumed work/school (Richards, supra; Sanchez, supra; see also Seck v. Balla, 92 AD3d 543 [1st Dept 2012]; Tsamos v. Diaz, 81 AD3d 546 [1st Dept 2011]; Jang Hwan An v. Parra, 90 AD3d 574 [1st Dept 2011]). 15. In Cantave v Gelle, 60 AD3d 988 [2d Dept 2009], the Court held: “The plaintiff's current complaints, as set forth in his affidavit, while suggestive of discomfort, do not suggest the inability to perform substantially all of his usual and customary daily activities (see Ingram v Doe, 296 AD2d 530 [2d Dept 2002]; Berk v Lopez, 278 AD2d 156 [1st Dept 2000]; Barbarulo v Allery, 271 AD2d 897 [3d Dept 2000]; Taber v Skulicz, 265 AD2d 902 [4th Dept 1999]). 16. In Marin v Ieni, 108 AD3d 656 [2d Dept 2013], the Court held summary judgment was properly granted because the defendants met their burden on the 90/180-day claim by submitting the plaintiff’s deposition testimony, which established that the plaintiff only missed one week of work and returned to normal duties four weeks after the accident. 17. The plaintiff’s testimony simply does not rise to their being unable to perform substantially all of the material acts that constitute their customary and daily activities for no less than 90 out of the first 180 days following the subject accident. PLAINTIFF’S OPPOSITION PAPERS DIFFER FROM DEPOSITION TESTIMONY 18. Your affirmant respectfully requests that this court not consider the plaintiff’s affidavit since it is self-serving, post-deposition and contradicts the plaintiff’s prior deposition 5 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 testimony (Kudisch v Grumpy Jack’s, Inc., 112 AD3d 788 [2d Dept 2013]; Mayancela v Almat Realty Development, LLC, 303 AD2d 207 [1st Dept 2003]). 19. The plaintiff’s self-serving comments concerning the inability to perform activities or complaints of occasional pain or even recurrent pain, without more, are insufficient to defeat a motion for summary judgment (Glielmi v Banner, 254 AD2d 255 [2d Dept 1998]; Brantley v NYC Metropolitan Trans. Auth., 48 AD3d 313 [1st Dept 2008]; Uddin v Cooper, 32 AD3d 270 [1st Dept 2006]). 20. Lastly, the plaintiff’s attempts to raise a triable issue of fact by submitting an affidavit in opposition to their deposition testimony must fail because it departs from their deposition testimony and must therefore be disregarded by the court in its entirety (Prunty v Keltie’s Bum Steer, 163 AD2d 595 [2d Dept 1990]). 21. In Thompson v Abbasi, 15 AD3d 95, 101 [1st Dept 2005], the First Department was presented with a situation similar to Prunty and to the case at bar. The plaintiff submitted an affidavit in which he described significant curtailment of his activities due to “’excruciating’ pain in his neck” and restricted motion. This conflicted with his earlier deposition testimony where he only claimed that he experienced some pain in his back while jogging. In rejecting the affidavit and granting summary judgment to the defendant, the court asserted that: Plaintiff’s self-serving affidavit, prepared in opposition to defendant’s summary judgment motion, was clearly tailored to avoid the consequences of his earlier testimony, and is therefore insufficient to raise an issue of fact. 22. In the case at bar, the plaintiff conceded at their deposition that: She testified that she was confined to her bed for two weeks following the accident. (p. 46). She is unable to clean her clean her tub and oven, perform household cleaning or go to the gym since the accident. (pp. 69-70). 6 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 23. However, in the affidavit plaintiff claims she cannot clean, paly ball, mop, do laundry, go shopping, mostly all for four months after the accident. 24. Plaintiff attempts to re-characterize and exaggerate their injuries in their affidavit submitted with their opposition papers. Your affirmant respectfully submits that the plaintiff’s attempts to raise an issue of fact by submitting an affidavit that contradicts their deposition testimony must fail, and must therefore be disregarded by the court in its entirety (Prunty v Keltie’s Bum Steer, 163 AD2d 595 [2d Dept 1990]); see also, LoBianco v Lake, 62 AD3d 590 [1st Dept 2009]; Blackmon, supra; Thompson, supra). PLAINTIFF HAS FAILED TO REBUT ADEQUATELY DEFENDANT’S MEDICAL DETERMINATION OF A DEGENERATION/PRIOR CONDITION 25. It is well settled that it is the plaintiff’s burden to prove that the plaintiff’s injuries were proximately caused by the instant auto accident and not a prior injury. (Finkelshteyn v Harris, 280 AD2d 579 [2d Dept. 2001]; Alcalay v Town of Hempstead, 262 AD2d 258 [2d Dept 1999]. 26. In a case where plaintiff injured his back in a prior accident, the Appellate Division in Cantave v Gelle, 60 AD3d 988, 989 [2d. Dept 2009] also held: “Neither of the plaintiff's physicians indicated that they reviewed the medical records arising from that prior accident. Accordingly, their conclusions that the plaintiff's injuries and limitations were caused solely by the subject accident were highly speculative (see Moore v Sarwar, 29 AD3d 752 [2006]; Tudisco v James, 28 AD3d 536 [2006]; Bennett v Genas, 27 AD3d 601 [2006]; Allyn v Hanley, 2 AD3d 470 [2003]).” 27. The affirmation or affidavit of a plaintiff’s treating physician must establish in non-conclusory terms the plaintiff’s injuries were caused by the subject accident and address the plaintiff’s prior and subsequent injuries or degenerative conditions. (Pommells v Perez, 4 7 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 NY3d 566 [2005]; Laurent v McIntosh, 49 AD3d 820 [2d Dept. 2008]. It is not sufficient for the plaintiff’s treating physicians to base their affidavits and/or affirmations on the plaintiff’s subjective complaints (Cennamo v Themistokleous, 22 AD3d 700 [2d Dept 2005] citing, Kivlan v Acevedo, 17 AD3d 321 [2d Dept 2005]. 28. In the case of Cavitolo v. Broser, (163 AD3d 913 [2d Dept. 2018]), the Appellate Division affirmed the lower court’s granting of defendant’s threshold motion holding that the plaintiff failed to raise a triable issue of fact as the “plaintiff’s expert failed to address the findings of the defendant’s examining radiologist that the plaintiff’s MRI revealed only pre- existing degenerative changes.” 29. In the recent case of Mnatcakanova v. Elliot, (174 Ad3d 798 [2d Dept. 2019]), the Appellate Division held that moving defendant established prima facie that plaintiff’s injuries to the cervical and thoracolumbar spine and right knee were degenerative and not proximately caused by the accident. The court held that despite plaintiff submitting medical reports in opposition of an expert that plaintiff’s injuries were causally connected to the accident: “the evidence submitted by the plaintiff failed to address the findings of the moving defendants’ expert that the injuries to her spine and knee were degenerative in nature.” 30. Even if the plaintiff submits the affidavit of his treating doctor in opposition to a threshold motion, if the treating “physician fails to address the findings of defendants’ examining radiologist that injuries to [plaintiff’s] cervical and lumbar spines were the result of pre-existing degenerative disc disease and were unrelated to the subject accident” the affidavit of plaintiff’s doctor will not raise an issue of fact sufficient to deny defendant’s threshold motion. Roman v. Fast Lane Care Service, Inc.,46 AD3d 535 [2d Dept. 2007]. 8 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 31. In this case defendant submitted the medical review of Dr. Steven Peyser, a radiologist, who reviewed plaintiff’s Cervical MRI. Dr. Peyser’s impression was: Review of the MRI of the cervical spine reveals cervical spondylosis, posterior central disc osteophyte formation at C3-4 through C6-7, degenerative anterior sublaxation at C7-T1 and spondylitic changes with bulging at T1-2 and T2-3. These findings are most consistent with pre-existing degenerative type change. No post traumatic type etiologies related to the accident date of May 3, 2018 can be determined. 32. In addition, Dr. Steven Peyser, reviewed plaintiff’s Right Shoulder MRI films Upon a review of plaintiff’s Right Shoulder MRI films, Dr. Peyser’s impression was: Review of the MRI of the right shoulder reveals hypertrophic change of the acromioclavicular joint consistent with pre- existing degenerative joint disease. No post traumatic type etiologies related to the accident date of May 3, 2018 can be determined. 33. While it is argued in opposition that there is a contradiction between Dr. Mannor and Dr. Peyser, no conflict exists. Dr. Mannor opined that plaintiff’s sprains and strains were resolved. Simply stating that their strains were resolved does not demonstrate Dr. Mannor causally related the accident to the injuries, just that plaintiff’s injuries, whether serious or nor or related or not resolved. As such, there is no conflict in the medical reports in this case. 34. Here, Dr. Abramov’s conclusions that the plaintiff was asymptomatic at the time of the subject accident are based solely on what the plaintiff reported to his report fails to adequately rebut the findings of Dr. Peyser in this case. Instead, Dr. Abramov simply states” If 9 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 the above statements are true and accurate, causality is established between the above state accident and today’s pathological findings.” 35. “Orthopedic surgeon's conclusion about aggravation of pre-existing injuries … was speculative and insufficient to show causation within meaning of no-fault law, where his summary of claimant's prior accidents did not include all of her accidents … and did not indicate that he had reviewed medical records from prior accidents” (Frisch v Harris, 101 AD3d 941 [2d Dept 2012]). 36. As defendant met their burden of proof, it is now the plaintiff’s burden to prove causality in order to defeat defendants’ motion. Because plaintiff cannot prove causality between the condition claimed and the underlying accident, plaintiff cannot defeat defendant’s motion for summary judgment (Scotto v Suh, 50 AD3d 1012 [2d Dept 2008]; Gorden v Tibulcio, 50 AD3d 460 [1st Dept 2008]; Lopez v American United Trans., 66 AD3d 407 [1st Dept 2009]; Ronda v Friendly Baptist Church, 52 AD3d 440 [1st Dept 2008]). HERNIATIONS AND BULGES, SPRAINS/STRAINS, AND RADICULOPATHY, WITHOUT MORE, ARE INSUFFICIENT TO PIERCE THRESHOLD 37. Proof establishing that the plaintiff sustained a bulging or herniated disc is not evidence of a serious injury in the absence of objective evidence to the extent of the alleged physical limitations resulting from the disc injury and its duration. see Scheker v. Brown, 91 AD3d 751 [2d Dept. 2012]; Vilomar v Castillo, 73 AD3d 758 [2d Dept 2010]; Lozusko v Miller. 38. The mere existence of radiculopathy does not constitute a “serious injury” within the meaning of the no-fault statute’s provision governing the threshold for tort recovery, there must be objective evidence of the extent or degree of the alleged limitation resulting from the 10 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 injury and its duration (see Furrs v Griffith, 43 AD3d 389 [2d Dept 2007]; Foley v Karvelis, 276 AD2d 666 [2d Dept 2000]). 39. Dr. Mannor found full range of motion in the plaintiff’s cervical spine, thoracic spine and right shoulder. The Court has held despite the existence of an MRI report that shows the existence of either herniated or bulging discs, a defendant who submits admissible proof that shows the plaintiff has a full range of motion, that the plaintiff does not have a disability that is causally related to subject accident has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (Kearse v New York City Transit Authority, 16 AD 3d 45 [2d Dept 2005]; Diaz v Turner, 306 AD2d 241 [2d Dept 2003]; Figueroa v Westbury Trans, 304 AD2d 614 [2d Dept 2003]. 40. Herniations alone do not constitute a serious injury (Pommells v Perez, 4 NY3d 566 [2005]; Onishi v N & B Taxi, Inc., 51 AD3d 594 [1st Dept 2008]; Park v Champagne, 34 AD3d 274 [1st Dept 2006]; 41. Spinal sprains and strains are not serious injuries (Diaz v Speedy Rent a Car, 259 AD2d 726 [2d Dept 1999]; Barrett v Howard, 202 AD2d 383 [2d Dept 1994]; Rhind v Naylor, 187 AD2d 498 [2d Dept 1992]; Delfino v Davey, 159 AD2d 604 [2d Dept 1992]; Cruz v Lugo, 67 AD3d 495 [1st Dept 2009]). THE DEFENDANT HAS ALSO ESTABLISHED PRIMA FACIE THAT THE PLAINTIFF DID NOT SUSTAIN A “SERIOUS INJURY” UNDER THE PERMANENT CONSEQUENTIAL LIMITATION OR SIGNIFICANT LIMITATION CATEGORIES. 42. Dr. Mannor’s report proves prima facie that the plaintiff sustained neither a “permanent consequential limitation of use of a body organ or member” nor a “significant limitation of use of a body function or system” within the meaning of the Insurance Law. The 11 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 plaintiff’s own deposition testimony establishes that she did not suffer a “serious injury” within the 90/180 category of the Insurance Law. 43. The Courts have continuously held that such independent examinations that occur more than a year, and often later, after the subject accident satisfy the defendant’s burden of proof that the plaintiff did not sustain a “serious injury” where the examining physician finds a full range of motion in the body parts, members, functions or systems that the plaintiff alleges to have injured (Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept 2005]; Diaz v Turner, 306 AD2d 241 [2d Dept 2003]; Figueroa v. Westbury Trans, Inc., 304 AD2d 614 [2d Dept 2003]; Fauk v Jenkins, 301 AD2d 564 [2d Dept 2003]; Bernabel v Perulllo, 300 AD2d 330 [2d Dept 2002]; Malpica v Lavergne, 294 AD2d 340 [2d Dept 2002]; Brown v Achy, 9 AD3d 30 [1st Dept 2004]). 44. In Turchuk v Town of Wallkill, 255 AD2d 576 (2d Dept 1998) the Court held: “In support of its motion for summary judgment, the defendant submitted a report from a physician who examined the plaintiff and found that although the plaintiff had sustained a contusion to the right shoulder, she no longer showed any objective signs of pathology. The defendant therefore demonstrated prima facie entitlement to summary judgment” (citing, Licari v Elliott, 57 NY2d 230 [1982]; Stallone v County of Suffolk, 209 AD2d 403 [2d Dept 1994]; Pagano v Kingsbury, 182 AD2d 268 [2d Dept 1992]; Forte v Vaccaro, 175 AD2d 153 [2d Dept 1991]). 45. Under the “significant limitation of use” category the Court has held: “the word ‘significant’ as used in the statute pertaining to ‘limitation of use of a body function or system’ should be construed to mean something more than a minor limitation of use. We believe that a minor, mild or slight limitation of use should be classified as insignificant within the meaning of the statute” (Licari v Elliott, 57 NY2d 230 [1982]). 12 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 46. In order to establish a serious injury under the No-Fault Law, the plaintiff must provide objective evidence of the plaintiff’s limitations that are contemporaneous with the subject accident (Knox v Lennihan, 65 AD3d 615 [2d Dept 2009]; Eldrainy v Hassain, 56 AD3d 419 [2d Dept 2008]; Morris v Edmond, 48 AD3d 432 [2d Dept 2008]). The plaintiff has failed to offer any objective evidence of any limitations contemporaneous with the subject accident. 47. The Court has held, if a plaintiff’s bodily limitation is substantial in degree, but only fleeting in duration, then the plaintiff’s alleged injury does not qualify as a “serious injury” (Thrall v City of Syracuse, 60 NY2d 950, revg. 96 AD2d 715 [1983] [medical evidence that injured party had full range of motion in April 1979 refutes claim that injury sustained in January 1979 significantly limited the use of his arms and shoulder]; Ciaccio v J & R Home Improvements, 149 AD2d 558 [2d Dept 1989] [evidence that injured party’s range of motion had greatly improved two weeks after the accident and was excellent four months thereafter negates claim of significant limitation]). 48. The findings of Dr. Mannor of full ranges of motion of the cervical, thoracic spines and shoulder “actually refutes” any claim by the plaintiff that his alleged injuries were “significant” (Thrall v City of Syracuse, 60 NY2d 950 [1983] revg. 96 AD2d 715 [4th Dept] for reasons cited in the dissent]). 49. The Court has held that a defendant who submits admissible proof that shows the plaintiff has a full range of motion has met its prima facie burden of showing the plaintiff did not sustain a “serious injury” despite the existence of an MRI report that shows the existence of either herniated or bulging discs (Kearse v New York City Transit Authority, 16 AD3d 45 [2d Dept 2005]. 13 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 WHEREFORE, it is respectfully requested that movant’s motion be granted in its entirety, that plaintiff’s complaint and any and all cross-claims against movant be dismissed in their entirety with prejudice, and for such other and further relief as the Court deems just and proper. ___________________________ Melissa A. Marano, Esq. 14 of 15 FILED: BRONX COUNTY CLERK 03/11/2021 11:36 AM INDEX NO. 22167/2019E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 03/11/2021 WORD COUNT CERTIFICATION Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the word count limit of 4,200 words set forth therein. The total number of words in this Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature blocks, is 3,910 pursuant to the word count in Microsoft Word, the word-processing system used to prepare the document. Dated: Hicksville, New York March 8, 2021 ________________________________ By: Melissa A. Marano, Esq. 15 of 15