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On October 4, 2002, the plaintiffs filed a personal injury action arising from a motor vehicle accident

On October 4, 2002, the plaintiffs filed a personal injuryaction arising from a motor vehicle accident and alleged that that they sustained serious injuries as defined by Insurance Law and seek to recover damages against the defendants.

The defendant moves for summary judgment in its favor. In support of the motion, the defendant submitted the following documents: with respect to plaintiff Mrs. A, the affirmed medical report of a neurologist referencing a neurological examination conducted on December 15, 2004 and the affirmed medical report of the orthopedist referencing an orthopedic examination conducted on December 15, 2004; with respect to plaintiff infant Mr. B, the affirmed medical report of the orthopedist referencing an orthopedic examination conducted on December 15, 2004 and the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004; and with respect to plaintiff infant Ms. C, the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004. (See Exhibit I.)

The lower court held that with respect to infant Ms. C, the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004 is insufficient to establish a prima facie case that infant sustained a serious injury as a result of the underlying accident because it fails to address the claims of vestibular dysfunction and left shoulder pain.
With respect to plaintiffs Mrs. A and infant Mr. B, the is evidence is sufficient to establish a prima facie case that neither plaintiff sustained a serious injury as a result of the underlying accident.

Consequently, the burden now shifts to these plaintiffs to come forward with sufficient evidence to raise a triable issue of fact as to whether either of them sustained a serious injury.
Plaintiff Mrs. A submits, in opposition to the motion, unsworn MRI reports of the lumbar and cervical spines and the affirmed neurological report dated September 2, 2005. The report revealed the range of motion losses suffered by the plaintiff. The results of a straight leg lifting examination is also an objective evidence of a serious injury. Consequently, plaintiff has raised a triable issue of fact as to whether she sustained a serious injury sufficient to defeat this summary judgment motion.

Plaintiff, infant Mr. B, submits in opposition to the motion, the unsworn MRI reports of the lumbar and cervical spines and the affirmed neurological report dated September 2, 2005. The lower court opined that in light of the denial of the plaintiff’s cross motion for leave to amend the Bill of Particulars to allege disc bulges, any medical opinion rendered with respect to the existence of disc bulges is irrelevant. The examination of plaintiff Mr. B, showed some limitations of motion of the lumbar spine, however straight leg raising test yielded a negative result. Consequently, plaintiff infant Mr. B has failed to raise a triable issue of fact as to whether she sustained a serious injury sufficient to defeat the summary judgment motion. The cross motion for leave to amend the Bill of Particulars was denied as well.

An important factor to be considered when addressing a motion is whether the motion was made promptly after discovery or awareness of facts upon which such amendment is predicated. Plaintiff’s counsel affirms in his affirmation dated September 7, 2005 that he just recently came into possession of a lumbar MRI report dated November 9, 2002 regarding infant Mr. B. In this regard, the Court was unable to determine whether the motion was made promptly.

The cross motion for an Order granting summary judgment to plaintiffs on the issues of liability and the existence of serious injury is denied as untimely. In this case, the Note of Issue was filed on March 15, 2005. Summary judgment motions were to have been made no later than July 13, 2005, or one hundred twenty days after the filing of the Note of Issue, and any motion made subsequent to required leave of court on good cause shown. The within cross motion was made when the cross motion papers were served upon opposing counsel, which was on September 7, 2005. Counsel on the cross motion does not seek leave of court for permission to file an untimely summary judgment cross motion. Nor does counsel on the cross motion establish good cause for the untimely cross motion. Accordingly, the cross motion seeking summary judgment in favor of plaintiffs on the issues of liability and the existence of serious injury is denied.

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