Plaintiff Gerald Wilks asserts in this action that he sustained personal injuries while [*2]occupying and operating his vehicle on October 4, 2018 as a result of negligent operation of another vehicle, operated by Defendant Sam Amadou Babayel and owned by Defendant Baichains, Inc.

Said Defendants now move for summary judgment, claiming that Plaintiff failed to meet the "serious injury" threshold of Insurance Law § 5104 (a), as defined in § 5102 (d). There are nine categories of serious injury, per Insurance Law § 5102 (d).

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 [1986]; Andre v Pomeroy, 35 NY2d 361 [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 moving Defendants bear the initial burden of establishing, by the submission of evidentiary proof in admissible form, a prima facie case that Plaintiff has not suffered a serious injury proximately resulting from the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [2016]).

If Defendants have made such a showing that Plaintiff has not suffered a serious injury from the subject motor vehicle accident as a matter of law, i.e., that Plaintiff does not qualify under the relevant serious injury threshold categories as there are no material issues of fact, the burden shifts to Plaintiff to submit evidence in admissible form to establish that there are material issues of fact (see Franchini v Palmieri, 1 NY3d 536 [2003]; Grasso v Angerami, 79 NY2d 813 [1991]).

In his bill of particulars, Plaintiff, who was about 59 years old when the accident occurred, alleged that he sustained injuries in the accident to the right knee. He asserted that he was confined to bed for one week and confined to home for approximately four months following the accident, leaving him totally incapacitated from work since the accident (see NYSCEF Doc No. 87, bill of particulars ¶¶ 12-13). As for serious injury threshold categories, Defendant claimed "permanent loss of use of a body organ, member, function or system; or permanent consequential limitation of use of a body organ or member and/or significant limitation of use of a body function or system and/or . . . prevented . . . from performing substantially all of the material acts which constitute [his] usual and customary daily activities not less than ninety (90) days during one hundred eighty (180) days immediately following the [subject accident]" (Id. ¶ 20).

Notably, the bill of particulars also included: "The above said injuries are permanent in nature and duration and were precipitated, aggravated and/or exacerbated by the occurrence herein. That to the extent the above injuries, conditions, and/or diagnoses are shown to pre-date the accident, then such injuries, conditions and/or diagnoses were latent, and inactive, and as a result of the accident, were activated, accelerated, aggravated and exacerbated therein" (Id. ¶ 21 [emphasis added]).

In moving for summary judgment, Defendants relied on an affirmed independent medical examination ("IME") report prepared by Dr. Jeffrey N. Guttman, a Board-certified orthopedic surgeon, who examined Plaintiff on February 23, 2023. Dr. Guttman detailed his examination of Plaintiff, related his findings, and set forth conclusions. Defendants also relied on a report prepared by Dr. Jessica F. Berkowitz, M.D., a Board-certified radiologist, who evaluated MRI imaging of Plaintiff's right knee performed on October 22, 2018. As well, Defendants relied on the certified transcript of the deposition examination before trial of Plaintiff conducted on December 7, 2021.

Dr. Guttman noted that Plaintiff was a restrained driver when he was rear-ended. He did not report if he lost consciousness or if he sustained any lacerations as a result of the accident. Plaintiff did not state whether he went to the hospital or received emergency medical care following the accident, but he sustained injuries to the neck, low back, and right knee. Treatment consisted of physical therapy, acupuncture, and chiropractic therapy. At the IME, Plaintiff complained of back pain. (See NYSCEF Doc No. 88, Dr. Jeffrey N. Guttman IME report at 4.)^[FN1] Dr. Guttman listed the various post-accident treatment records which he reviewed. He summarized them in chronological order. He noted the right knee MRI revealed a tear of the medial meniscus, a contusion overlying the patellar tendon, and a small joint effusion. On November 29, 2018, Dr. Stan Avshalumov performed right knee arthroscopic surgery which included: partial medial and partial lateral meniscectomy; synovectomy; chondroplasty of medial femoral condyle; and intraarticular injections for post-operative pain control. (See id. at 5-6.)

At the IME, Plaintiff walked with a normal gait and without assistive devices. Dr. Guttman compared Plaintiff's observed ranges of motion to what he considered to be normal and found full range of motion in the right knee on extension (0/0 degrees). Flexion was recorded at 120/140 degrees. Range of motion testing was performed using a goniometer. (See id. at 6.)

Dr. Guttman also conducted the following orthopedic tests, which yielded negative results: Lachman's, Patella Tracking, Anterior Drawer, Posterior Drawer, Patella Grind, Patella Bursitis, McMurray's, Bounce, and Pivot Shift; no varus/valgus deformity was detected and Plaintiff was stable on varus/valgus stress. Dr. Guttman also found that Plaintiff scored 5/5 for a strength test of the quadriceps and hamstring; had no atrophy in the quadriceps and hamstring muscles; and had no chondromalacia on palpation of the patella. No heat, swelling, effusion, or erythema crepitus was appreciated, and neither was there tenderness upon palpation. Multiple healed arthroscopic scars were noted. (See id. at 6-7.)

Dr. Guttman opined at the end of his report, "The medical records provided have zero objective evidence that the right knee claims are causally related to the MVA of October 4, 2018." He added, "Mr. Wilks reportedly sustained the above-mentioned injury as a result of the accident of October 4, 2018 which is now resolved. There were no objective findings on examination. He can participate in all activities of daily living. He may work at his regular [*3]employment, full time without restrictions. He did not sustain any permanent injury or disability." (Id. at 7.)

Dr. Berkowitz reviewed MRI imaging of Plaintiff's right knee taken on October 22, 2018, and provided findings as follows (NYSCEF Doc No. 89, Dr. Jessica F. Berkowitz MRI review at 4):

The submitted examination consists of axial T2, fat suppressed T2, sagittal fat suppressed T2 and coronal proton density, T2 and fat suppressed T2 weighed pulse sequences of the knee. The sagittal images are moderately degraded by motion artifact and other sequences are slightly degraded by motion artifact.

There is a bipartite patella. There appear to be areas of cartilage loss involving the lateral joint compartment. No areas of abnormal bone marrow signal intensity are noted. No joint effusion is present. The anterior and posterior cruciate ligaments and medial and lateral collateral ligaments are intact. The quadriceps and patellar tendons appear to be substantially intact on the axial images. The menisci cannot be evaluated due to patient motion.

Impression: Bipartite patella. This is developmental. Probable cartilage loss involving the lateral joint compartment. The examination is moderately degraded by motion artifact. The quadriceps and patellar tendons ca only be seen in the axial plane and the menisci cannot be evaluated. There I no evidence of acute traumatic injury to the knee such as fracture, traumatic bone marrow edema or ligamentous tear.

Causal Relationship: Evaluation of this MRI examination reveals no causal relationship between the claimants's alleged accident and the findings of the MRI examination.

In his affirmation (NYSCEF Doc. No. 83, Michael Lachman Affirmation ¶¶ 13-14), Defendants' counsel emphasized the following alleged testimony given by Plaintiff at his deposition, the transcript of which was submitted as NYSCEF Doc No. 90:

Following the accident on October 4, 2018, Plaintiff called 911 and specifically stated that he did not need an ambulance (citing NYSCEF Doc No. 90, deposition at 26). He drove himself home afterward and did not seek medical treatment until after a week (citing id. at 28-29). Plaintiff sought treatment at a physical therapy facility but ceased treatment after six months (citing id. at 29, 31).

As a result of the accident, Plaintiff missed three to six weeks of work as a social worker (citing id. at 8, 38-40). He also admitted that he was at no point confined to bed though was confined to home for a period of three weeks following the accident (citing id. at 42-43). He retired in July of 2020, over a year and a half after the accident (citing id. at 8).

As mentioned above, Plaintiff asserted four serious injury categories set forth in Insurance Law § 5102 (d) which assertedly entitled him to maintain an action for personal injuries resulting from the subject motor vehicle accident: permanent loss of use of a body organ, [*4]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 NYSCEF Doc. No. 87, bill of particulars ¶ 20). He claimed that the serious injuries were "[a]s a result of this occurrence" (id. at ¶ 10).

Defendant's counsel's affirmation claimed that Plaintiff's deposition testimony was that the latter was never confined to bed "and was only confirmed to his home for three weeks following the accident." Counsel cited to pages 42-43 of the transcript. (See NYSCEF Doc No. 83, Michael Lachman Affirmation ¶ 14.) This is incorrect. Nowhere on pages 42-43 is there testimony by Plaintiff that he stayed home for three weeks following the accident.^[FN2]

Defendant's counsel's affirmation also claimed that "Plaintiff missed about three to six weeks of work as a result of the accident, which does not meet 90/180. See pages 38-40." (Id.) At pages 38-40 of the deposition testimony, Plaintiff was questioned about his right knee surgery of November 29, 2018. He was asked, "Before you had this surgery, how much work did you miss, if any, before the surgery?" and answered "Oh, before the surgery, um, I would say three weeks" (NYSCEF Doc No. 90, deposition at 38). But the question was clarified right afterwards. Plaintiff's own counsel asked, "Did you work at all from the time of the accident until you had your knee surgery?" (Id. at 39). Plaintiff responded, "Oh, no" (id.). Defendants' counsel accepted this answer: "Okay. Now I got it. Thank you." (Id.) Thus, Plaintiff's testimony was that he was out of work from the accident until the right knee surgery. This Court takes judicial notice that excluding the accident date of October 4, 2018, the number of days encompassed from October 5, 2018 to November 29, 2018, inclusive, was 56.

Immediately after that colloquy on page 39 in the transcript, Defendant's counsel asked Plaintiff about post-surgery treatment. He did not return to questioning about time lost from work. However, back on page 38, Plaintiff was asked, "After the surgery, did you miss work after the surgery?" and Plaintiff answered, "Yes. I went back in January" (id. at 38). The next question was "When you went back in January, did you go back full-time?" and the response was "Yes" (id.). The period of time from the day after the surgery (November 30, 2018) through December 31, 2018, inclusive, encompassed 32 days. Adding 56 days plus 32 days yields a sum of 88, two days short of 90.^[FN3] It is possible that when Plaintiff returned to work in January it was at least several days into January, which would mean that he was out for 90 or more days. But [*5]the burden of establishing how many days Plaintiff was out of work was not his. It was Defendant's burden to initially establish as a matter of law that the 90/180 category was not met.

Rarely in serious injury threshold summary judgment motions does a defendant prove a lack of a material issue of fact as to the 90/180 category though a doctor's report (e.g. Rouach v Betts, 71 AD3d 977 [2d Dept 2010]; Pinder v Salvatore, 69 AD3d 823 [2d Dept 2010]; Takaroff v A.M. USA, Inc., 63 AD3d 1142 [2d Dept 2009]; Neuberger v Sidoruk, 60 AD3d 650 [2d Dept 2009]; Alexandre v Dweck, 44 AD3d 597 [2d Dept 2007]; Bozza v O'Neill, 43 AD3d 1094 [2d Dept 2007]; Sayers v Hot, 23 AD3d 453 [2d Dept 2005]). This is because IMEs scheduled for the purpose of examining a plaintiff in contemplation of a possible summary judgment motion by the defendant are usually conducted years after the motor vehicle accident.

Thus, defense motions asserting that a plaintiff is unable to establish that he was prevented "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" are usually predicated upon statements in the bill of particulars or testimony at the deposition (e.g. Tinyanoff v Kuna, 98 AD3d 501 [2d Dept. 2021] [deposition testimony that missed only three days of school]; Amato v Gorecik, 167 AD3d 557 [2d Dept 2018] [defendant made out prima facie case by submitting plaintiff's deposition testimony that missed only about two weeks of work during the 180-day period]; Anderson v Foley, 162 AD3d 965 [2d Dept 2018] [defendant made out prima facie case when it submitted deposition testimony that plaintiff missed not more than three weeks of work during the 180-day period following accident]; Heesook Choi v Mendez, 161 AD3d 1054 [2d Dept 2018] [defendant made out prima facie case by submitting deposition transcript that plaintiff missed about six weeks work within 180 days after accident]; Il Chung Lim v Chrabaszcz, 95 AD3d 950 [2d Dept 2012] [plaintiff admitted in bill of particulars that incapacitated for only two days]; Knox v Lennihan, 65 AD3d 615 [2d Dept 2009] [deposition testimony was that returned to work full-time around one and half months after accident].

In the case at bar, Plaintiff claimed in his bill of particulars that he was "confined to home for approximately four (4) months following the occurrence complained of herein, intermittently thereafter and continuing" (NYSCEF Doc No. 87, bill of particulars ¶ 12). If true, Plaintiff might very well have met the 90/180 category. At the deposition, however, defense counsel did not inquire specifically as to the date Plaintiff returned to work. Moreover, Plaintiff might have been unable to perform substantially all of the material acts which constituted his usual and customary daily activities for a certain number of additional days within the 180-day period following the accident.

The point here is that in failing to ask direct questions relating to the 180-day period in order to ascertain whether the 90-day minimum for 90/180 was met, Defendants failed to establish a prima facie case that Plaintiff did not meet the 90/180 category (see Jong Cheol Yang v Grayline NY Tours, 186 AD3d 1501 [2d Dept 2020] [plaintiff's deposition testimony did not identify usual and customary activities during relevant time period and did not compare pre- and post-accident activities]; Scinto v Hoyte, 57 AD3d 646 [2d Dept 2008] [deposition testimony insufficient to establish defendants' burden of proof that plaintiff had no 90/180 serious injury]). It was crucial to do so because the bill of particulars asserted that Plaintiff was out of work for approximately four months (see Epstein v MTA Long Island Bus, 161 AD3d 821 [2d Dept 2018] [bill of particulars alleged confined to home 20 weeks]; Reynolds v Leung, 78 AD3d 919 [2d Dept 2010] [bill of particulars alleged resumed working after 110 weeks]; Takaroff v A.M. USA, [*6]Inc., 63 AD3d 1142 [2d Dept 2009] [confirmed to home four months per bill of particulars]).^[FN4]

As such, this Court finds that Defendants did not establish as a matter of law that Plaintiff's injuries did not fall within the ambit of the 90/180 category, i.e., Defendants failed to establish a lack of a material issue of fact that it was not met.

A plaintiff claiming this category must prove that the permanent loss of use is a total loss of use (see Oberly v Bangs Ambulance, Inc., 96 NY2d 295 [2001]). Dr. Guttman's IME report established a prima facie case that Plaintiff did not sustain total loss of use of an organ, member, function or system since every body examined had some use or movement (see NYSCEF Doc No. 88, Dr. Jeffrey N. Guttman IME report).

Dr. Guttman's detailed IME report (NYSCEF Doc No. 88) reflected extensive orthopedic testing of the right knee. He wrote that active range of motion revealed flexion to be 120° when 140� is normal, which constitutes a 14.3% decrease in range of motion. However, anything below 15% is deemed insignificant (see Cebron v Tuncoglu, 109 AD3d 631 [2d Dept 2013] [10% limitation]; Il Chung Lim v Chrabaszcz, 95 AD3d 950 [2d Dept 2012] [NYSCEF Doc No. 90, deposition at 3813% limitation]; McLoud v Reyes, 82 AD3d 848 [2d Dept 2011] [12% limitation]; Beckett v Conte, 176 AD2d 774 [2d Dept 1991] [11% impairment]; Waldman v Dong Kook Chang, 175 AD2d 204 [2d Dept 1991] [15% limitation insignificant]).

Nonetheless, this Court finds that Defendants failed to make out a prima facie case of entitlement to summary judgment with respect to these two categories. Dr. Guttman did not set forth the authority he relied upon to determine what the norms are on range of motion testing. While this Court has not located appellate authority for the proposition that an examining doctor whose report is used on a motion for summary judgment to dismiss a complaint premised on the asserted ground of a lack of serious injury must set forth where the doctor derived the norms, this Court notes that doctors do not always agree on them (see Layne v Drouillard, 65 AD3d 1197 [2d Dept 2010, Spolzino, J., dissenting]; Balkaran v Shapiro-Shellaby, 26 Misc 3d 1228(A), 2009 NY Slip Op 52755(U) (Sup. Ct. Bronx Co. 2009). Summary judgment dismissing a complaint and depriving a plaintiff of a jury trial is a drastic remedy. To premise a grant of [*7]summary judgment on a doctor's range of motion findings without the doctor stating the source of the "normal degrees" is inequitable and insufficient, inasmuch as case law has noted that there are at least several sources (e.g. Ramos v Keenan, 2017 NY Slip Op 31286(U), *1 [Sup Ct, NY County 2017] [AMA Guidelines 5th Edition, NYS guidelines, McBride's Guide to Permanent Disability]; Roldan v Perro, 2013 WL 9972883, *2 [Sup Ct, Nassau County, May 23, 2013, No. 16464/2011] [AMA guidelines]; Davis v Rivers, 2010 WL 3738550 [Sup Ct, Sept. 15, 2010, No. 19190/2008] [Physical Examination of the Spine and Extremities by Dr. Hoppenfeld, American Medical Association Guidelines to the Evaluation of Permanent Impairment, Campbell's Operative Orthopedics]).

Conclusory findings of a doctor are insufficient on a motion for summary judgment (see Pupko v Hassan, 149 AD3d 988 [2d Dept 2017] [conclusory and speculative opinion regarding causation]; Landman v Sarcona, 63 AD3d 690 [2d Dept 2009] [doctor's opinion that significant limitation due to plaintiff's age and evidence of degenerative disease conclusory]). Providing an opinion without stating the tests relied on is insufficient (see Smith v Quicci, 62 AD3d 858 [2d Dept 2009]; Rodriguez v J&K Taxi, Inc., 12 AD3d 434 [2d Dept 2004]). Stating results without the norms is insufficient (see Shirman v Lawal, 69 AD3d 838 [2d Dept 2010]; Malave v Basikov, 45 AD3d 539 [2d Dept 2007]; DeLuca v Miceli, 37 AD3d 643 [2d Dept 2007]; Frey v Fedorciuc, 36 AD3d 587 [2d Dept 2007]; Powell v Alade, 31 AD3d 523 [2d Dept 2006]). Likewise, without indicating where the norms were obtained from, it is insufficient to opine that "There were no objective findings on examination" (NYSCEF Doc No. 88, Dr. Jeffrey N. Guttman IME report at 7), especially since the doctor himself found reduced range of motion by his own lack-of-source standard.

Therefore, Defendants failed to make out a prima facie case that Plaintiff failed to meet the serious injury threshold categories of permanent consequential limitation of use of a body organ or member and significant limitation of use of a body function or system.

Dr. Guttman opined that no objective evidence was provided showing that the right knee condition was causally related to the subject motor vehicle accident (see id.). Dr. Berkowitz likewise opined that no causal relationship existed between the subject motor vehicle accident and the MRI imaging findings (see NYSCEF Doc No. 89, Dr. Jessica F. Berkowitz's MRI review at 4). However, neither medical expert discussed the claim of exacerbation made in the bill of particulars at paragraph 21 (NYSCEF Doc No. 87) (see supra at 2). A plaintiff is entitled to recover for damages proximately resulting from an accident even if he had a pre-existing condition or accident, in an amount representing the damages caused by the exacerbation (see Wojcik v Kent, 21 AD3d 1410 [4th Dept 2005]).

While Plaintiff's bill of particulars' paragraph 21 did not specify the body part which was injured and thereby exacerbated, evidence should be viewed in the light most favorable to the non-moving party, giving the non-moving party the "benefit of every reasonable inference" (Negri v Stop & Shop, Inc., 65 NY2d 625, 626[1985]; see Nicholas v C & F Trading Co., 107 AD3d 769 [2d Dept 2013]). The only body part alleged to have been injured was the right knee. Ergo, Plaintiff claimed that injuries to the right knee exacerbated any condition which Defendants found to predate the accident.

Without addressing Plaintiff's exacerbation claim, Defendants failed to establish a prima facie case that there was no issue of fact pertaining to proximate causation (see Liburd v Mondal, [*8]215 AD3d 655 [2d Dept 2023]; Menjivar v Capers, 214 AD3d 640 [2d Dept 2023]; Cuthill v Yun, 214 AD3d 623 [2d Dept 2023]; D'Augustino v Bryan Auto Parts, Inc., 152 AD3d 648 [2d Dept 2017]).

On this motion for summary judgment, Defendants failed to make out their prima facie case that Plaintiff's alleged injuries were not proximately caused by the October 4, 2018 motor vehicle accident. Likewise, Defendants failed to make out a prima facie case that Defendant's injuries did not meet the serious injury threshold as it is defined in Insurance Law § 5102 (d) and required by § 5104 (a). While Defendants established their prima facie case regarding permanent loss of a body organ, member, function, or system, they failed to do so with respect to the categories of permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, and 90/180. Thus, there remains a material issue of fact regarding serious injury, and Plaintiff is entitled to recover at trial for all injuries proximately resulting from the October 4, 2018 motor vehicle accident (see Linton v Nawaz, 14 NY3d 821 [2010]; O'Neill v O'Neill, 261 AD2d 459 [2d Dept 1999]; Prieston v Massaro, 107 AD2d 742 [2d Dept 1985]). This Court need not review Plaintiff's evidence to determine whether it rebutted that of Defendants (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [2016]; Wickman v Kastavis, — AD3d —, 2023 NY Slip Op 03375 [2d Dept June 21, 2023]).

Accordingly, IT IS HEREBY ORDERED that Defendants' motion for summary judgment is DENIED.