YUN v. NYSSENS (2025)

The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 35, 36, 37, 38, 39, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 were read on this motion to/for JUDGMENT - SUMMARY.

Upon the foregoing documents, it is ordered that the motion by Lucie M. Nyssens (“Defendant”) pursuant to CPLR 3212 for an Order granting summary judgment and dismissing plaintiffs’ complaint on the grounds that neither plaintiff, Marina A. Yun (“Yun”), nor plaintiff, Leonard Gueye (“Gueye”), has sustained injuries that satisfy the “serious injury” threshold within the meaning of Insurance Law 5102 (d) is granted in part and denied in part for the reasons that follow.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Plaintiffs filed this action to recover damages for personal injuries that they allegedly sustained in an automobile accident that occurred on August 1, 2020. Plaintiffs allege that Defendant negligently operated her vehicle, causing it to rear-end their vehicle, the impact of which resulted in their sustaining serious injuries. NY St Cts Elec Filing [NYSCEF] Doc No. 1 (Summons and Complaint).

On September 26, 2023, Yun testified at her deposition that she was stopped at a traffic light at or near 121st-122nd Street in Manhattan when defendant rear-ended her vehicle. She testified the impact caused her body to move backward, whereupon her head hit the headrest before she was moved forward. NYSCEF Doc No. 27, pp. 34-37. Also on September 26, 2023, Gueye testified at his deposition that he felt two (2) impacts, stating the first impact was heavy while the second was moderate. NYSCEF Doc No. 28, pp. 28-30. Gueye testified that he had no pain immediately after the accident. NYSCEF Doc No. 28, p. 34.

Plaintiffs declined the offer of police officers on the scene to have an ambulance with paramedics treat or transport them to a hospital for evaluation and medical care. NYSCEF Doc No. 27 p. 42-46. NYSCEF Doc No. 28 p. 33-34. Plaintiffs advised the police that they would seek any medical treatment needed in New Jersey where they reside. Id. NYSCEF Doc No. 27, pp. 42-46. NYSCEF Doc No. 3.

YUN'S CLAIMED INJURIES

Yun alleges injuries to her cervical spine and lumbar spine. According to the Verified Bill of Particulars, she sustained a “straightening of the cervical lordosis suggesting muscle spasm, C3-C4 midline disc herniations causing mild spinal stenosis abutting the ventral cord, C4-C5 midline disc herniations, disc bulge; and C5-C6 midline disc herniations resulting in mild spinal stenosis abutting the ventral cord. NYSCEF Doc No. 7, p. 3 of 10. As to the lumbar spine, it states “L4-L5 tear disc herniation, loss of disc height, disc bulge and left-sided endplate marrow edema, moderate facet arthropathy and mild grade I retrolisthesis, moderate spinal stenosis, compression of descending L5 nerve root, encroaching on the exiting left L4 nerve root; L3-L4 arthropathy and mild grade I retrolisthesis, broad-based posterior disc bulge, T12-L1 disc herniation, disc bulge.” Id.

Dr. Schran affirmed that he treated Yun, beginning August 12, 2020, and continuing until May 19, 2021 (NYSCEF Doc No 27, p. 53, NYSCEF Doc No. 48, pp. 412-424). Treatment included physical therapy, acupuncture, electrical stimulation, pain management, and injections, including medial branch blocks. Dr. Schran reported approximately 50% pain reduction in areas. NYSCEF Doc No. 27, p. 53. NYSCEF Doc No. 48 p. 412-424. A nerve conduction study and EMG were normal with no evidence of cervical radiculopathy, brachial plexopathy, or peripheral neuropathy. (NYSCEF Doc. No. 48, pp. 8-9 of 421). Appearing in his report under the heading “Findings: All nerve conduction studies revealed normal latencies, amplitudes, and conduction velocities. He indicated that CT scans of Yun's head and neck showed no acute pathology.

Dr. Schran disagreed with Dr. Nathan Zemel, regarding MMI (maximum medical improvement); he recommended continuing acupuncture and further injections due to persistent pain. He added that with persistent neck pain despite conservative therapy, he would recommend the right C4, C5, and C6 cervical diagnostic medial branch block injections for evaluation and to improve function, if possible. NYSCEF Doc No. 48 p. 4 of 4 (214-215 of 421). He further stated on date of service 3/1/2021: “On 12/21/20, She has now completed ~ 45 sessions of PT with intermitent (sic) relief.” NYSCEF Doc No. 48, p. 15 of 169 (233 of 421). In May 2021, Plaintiff stopped treating with Dr. Schran. NYSCEF Doc No. 48, p. 416 of 421 on the basis that there were no further improvements to her condition. On June 3, 2024, by letter to plaintiff's counsel, Dr. Schran opined in a letter to counsel that plaintiff's condition was permanent. Id.

Yun testified at her deposition that Dr. Schran referred her to John Athas, MD and to Omar Syed, MD for further treatment. NYSCEF Doc No. 27, p. 60 and NYSCEF Doc No. 45, p. 2. By letter dated December 9, 2020, Dr. Syed found degenerative disc disease at L4-L5 and disc herniation with lumbar radiculopathy among his other findings. NYSCEF Doc No. 48, p. 409. He reported that an epidural injection provided significant relief and discussed pain management strategies, including possible surgery, which Yun declined.

Dr. Athas, a board certified neuroradiologist, reviewed cervical spine imaging from September 24, 2020. His report dated “6 27, 2024 (sic)” confirmed cervical lordosis straightening and noted, suggesting muscle spasm, and noted the cervical cord is normal in caliber and signal intensity, C3-C4 had a focal midline disc herniation resulting in mild spinal stenosis abutting the ventral cord. No cord signal abnormality detected-neural foramina patent, C4-C5 focal midline disc herniation superimposed on an underlying disc bulge resulting in mild spinal stenosis mildly compressing the ventral cord with no cord signal abnormality detected, C5-C6 focal midline disc herniation identified resulting in mild spinal stenosis abutting the ventral cord with no cord signal abnormality, neural foramina patent. NYSCEF Doc 49, p. 1-2.

On November 29, 2023, Dana Mannor, MD, a board-certified orthopedic surgeon, conducted an IME and reviewed plaintiff's medical records NYSCEF Doc No. 29, p. 4; NYSCEF Doc No. 20, p. 6-7 of 13; NYSCEF Doc No. 24, p. 7 of 15, Paragraph 31. Dr. Mannor reported: “Cervical Spine: There is no muscle spasm noted. Non tender to palpation. There is no atrophy, deformity or soft tissue swelling noted.” Dr. Mannor indicated that examinations of Yun's cervical spine and lumbar spine revealed neither spasms nor any tenderness to palpation nor any “atrophy, deformity or soft tissue swelling noted.” NYSCEF Doc No. 29, p. 4.

Dr. Mannor also tested the ranges of motion of Yun's cervical spine, using a goniometer as per the “Guidelines to the Evaluation of Permanent Impairment,” 5th edition published by the American Medical Association. Dr. Mannor found an active range of motion in flexion to 50 degrees (50 degrees normal), extension to 60 degrees (60 degrees normal), right lateral flexion to 45 degrees (45 degrees normal), and right rotation to 80 degrees (80 degrees normal), and left rotation to 80 degrees (80 degrees normal. NYSCEF Doc No. 20, p. 6 of 13. [The] “passive range of motion is full.” Spurling's test was negative. Id. Dr. Mannor concluded that Yun's cervical and lumbar sprains had resolved and found no objective evidence of ongoing orthopedic impairment. NYSCEF Doc No. 20, p. 5. Dr. Mannor opined that plaintiff's complaints were unsupported by clinical findings; the range of motion of one's examined body part as performed by a claimant is a subjective maneuver, while the measurement by the goniometer of an examined body part is an objective measurement of claimant's subjective efforts. Id.

Plaintiff did not answer 7(a) or 7(b) of the verified bill of particulars concerning bed and home confinement (see NYSCEF Doc No. 7, p. 5 of 10). However, in deposition, she testified to being confined to her bed for “a few days,” clarifying her answer to mean approximately one day up to three days and maxed out her confinement to bed at three (3) days. NYSCEF Doc No. 27 at 65-67. Yun testified her daily activities include driving, housework, including laundry, washing dishes, and cooking. NYSCEF Doc No. 27 pp. 74-75.

GUEYE'S CLAIMED INJURIES

Gueye alleges injuries to his cervical spine and lumbar spine, including mild facet arthropathy and grade I retrolisthesis, mild loss of disc height, severe spinal stenosis compressing the left half of the cervical cord, severe left lateral recess and neural foraminal narrowing compressing the exiting left C4 nerve root, disc bulges and herniated discs at C3-C4, C4-C5 and C5-C6, L5-S1, L4-L5, L3-L4 as well as losses to his lumbar spine, comprised of disc herniations and bulging discs. As a result, he underwent several epidural procedures. NYSCEF Doc No. 7, p. 3-4.

Dr. Schran affirmed that he began treating Gueye on August 12, 2020 and concluded on or about May 11, 2021. NYSCEF Doc No. 51, p. 377 of 399. On 5/11/21, plaintiff received a C7-T1 injection, reporting about 80% symptom relief. Id., pp. 377-381 of 399. He presented with radiating neck and mid-back pain, lower back pain extending to his legs, and bilateral foot numbness. Pain was rated as mild (1/10) at that time.

Dr. Schran noted that the MRI reports revealed:

• Cervical spine: Disc herniations at C4-C6, associated stenosis and a normal spinal cord signal. C6-C7, C7-T1 unremarkable.

• Lumbar spine: L3-L4 disc herniations and disc bulges, L4-L5 disc herniation, disc bulge, L5-S1 disc herniation. L1-L2-L3 unremarkable.

Electrodiagnostic studies indicated:

• 11/2/2020 left lumbar polyradiculopathy, primarily affecting left L5-S1 and sensory and axonal peripheral neuropathy consistent with diabetes.

• 1/18/2021 left C5 cervical radiculopathy, peripheral polyneuropathy primarily sensory and axonal consistent with diabetes.

On December 13, 2023, Dr. Mannor examined Gueye for the IME. NYSCEF Doc No. 19, pp. 3-14 of 14. NYSCEF Doc No. 30, pp. 2-8 of 8. Dr. Mannor reviewed verified bill of particulars and the available medical records of Drs. Schran, Athas, and Syed. NYSCEF Doc No. 19, pp. 8-9 of 14. NYSCEF Doc No. 30, pp. 7-8 of 8.

Dr. Mannor observed that Gueye ambulated with a normal gait. NYSCEF Doc No. 30, pp. 3-4 of 8. Dr. Mannor conducted range of motion testing using a goniometer. As explained in the report submitted, while the movement itself is subjective, goniometric readings provide objective measures in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition. NYSCEF Doc No. 119, p. 4; NYSCEF Doc No. 30, p. 4.

Dr. Schran summarized the cervical spine findings as follows:

Cervical spine findings:

• no muscle spasm noted, non-tender to palpation, no atrophy, deformity or soft tissue swelling

• active range of motion is in flexion to 50 degrees (50 degrees normal), extension to 40 degrees (60 degrees normal), right lateral flexion to 45 degrees (45 degrees normal) and left lateral flexion to 45 degrees (45 degrees normal), and right rotation to 60 degrees (80 degrees normal) and left rotation to 60 degrees (80 degrees normal). Passive range of motion is full.

• Spurling's test - negative.

• Grossly neurovascularly intact, motor strength is 5/5; reflexes are 2+ and symmetric in the bilateral upper extremities.” NYSCEF Doc No. 19, pp. 4-5. NYSCEF Doc No. 30, pp. 4-5.

Dr. Mannor summarized the lumbar spine findings as follows:

Lumbar spine findings:

• active range of motion was in flexion to 40 degrees (60 degrees normal), extension to 15 degrees (25 degrees normal), and right lateral rotation to 25 degrees (25 degrees normal) and left lateral rotation to 25 degrees (25 degrees normal).

• no muscle spasm, non-tender to palpation, no atrophy, deformity or soft tissue swelling.

Based on the totality of the exam, Dr. Mannor opined that Gueye's cervical and lumbar conditions had resolved and that there were no objective findings to corroborate his subjective complaints, finding that Gueye did not suffer from any orthopedic disability.

Legal Standard

Insurance Law § 5104 (a) establishes: “Notwithstanding any other law ․ for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss ․” Id.

Insurance Law 5102 (d) defines “serious injury” as:

[“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.” Insurance Law, 5102.

Plaintiffs contend that their injuries fall into the following four (4) categories of “serious injury”: (1) permanent loss of use of a body organ, member, function or system; (2) permanent consequential limitation of use of a body organ or member; (3) significant limitation of use of a body function or system; and (4) 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. The fourth (4th) category set forth above, which plaintiffs contend applies herein, is a type of catch-all category of qualifying injury(ies) that require(s) a medical determination, but which is/are based upon the allegedly injured persons’ subjective complaints.

Under CPLR 3212, summary judgment is appropriate where the proponent of a motion makes a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence “to eliminate any material issues of fact from the case.” Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Lambert v. Signature Relocations, LLC, 2025 NY Slip Op 30739[U], *4[Sup Ct, NY County 2025]. Chen v. Brims, 2022 NY Slip Op 33910(U), [Sup Ct, NY County 2022]. The party that opposes granting summary judgment then has the burden of presenting facts sufficient to raise triable issues. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); see also Licari v. Elliott, 57 NY2d 230, 237 (1982). The evidence must be viewed in a light most favorable to the non-moving party. Martin v. Briggs, 235 AD2d 192, 196 (1st Dept. 1997).

New York courts recognize that the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries.” Dufel v. Green, 84 NY2d 795, 798 (1995). Such recognition means that the court requires objective proof of a plaintiff's injury to satisfy the statutory serious injury threshold. Id.

To prevail on a motion for summary judgment, the defendant has the initial burden to present competent evidence showing that the plaintiff has not suffered a “serious injury.” Rodriguez v. Goldstein, 182 AD2d 396, 397 (1st Dept 1992). Defendant must submit “ ‘expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident.’ ” Sena v. Rim, 2025 N.Y.Misc. LEXIS 1835, *2 (Sup Ct, NY County 2025), quoting Vega v. MTA Bus Co., 96 AD3d 506, 507 (1st Dept. 2012. See also Shinn v. Catanzaro, 1 AD3d 195,197 1st Dept (2003), quoting Grossman v. Wright, 268 AD2d 79, 84 (2d Dept 2000). If this initial burden is met, “the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law” Id. at 197, Grossman, 268 AD2d at 84. Subjective complaints alone are not sufficient. Scheer v. Koubek, 70 NY2d 678, 679 (1987).” Objective proofs must be presented to satisfy the serious injury threshold. Lambert, supra, citing Toure v. Avis Rent A Car Sys., 98 NY2d 345, 350, rearg denied 98 NY2d 728 (2002).

Discussion

Defendant contends that plaintiffs were not seriously injured in the accident under any category as a matter of law.

The term “serious injury” constitutes a threshold issue in accordance with 5102 (d) that is separate from fault. Insurance Law 5102 (d), Toure, 98 NY2d at 353-354. Thus, it is a necessary element of plaintiffs’ prima facie case. To meet the threshold, a plaintiff must submit objective medical evidence from objective tests, not subjective. Rangel v. Lama, 77 Misc 3d 1207(A), 2022 NY Slip Op 51161(U)(Sup Ct, NY County 2022), citing Shinn, supra and Gaddy v. Eyler, 79 NY2d 955(1992). Plaintiffs’ doctors used medical equipment, like a goniometer or MRI or x-rays, to examine body parts to yield what are known as objective results. Of course, tests can produce different results, as here. For example, the tests performed by the physicians of plaintiffs differed from the tests performed by the expert for defendant in the IME, discussed below.

PERMANENT LOSS OF USE-YUN AND GUEYE

To qualify as a serious injury within the meaning of the statute, ‘permanent loss of use’ of a body part must be total. Oberly v. Bangs Ambulance, 96 NY2d 295, 297 (2001). The Oberly Court held that “․ [R]equiring a total loss is consistent with the addition of the categories ‘permanent consequential limitation of use of a body organ or member’ and ‘significant limitation of use of a body function or system.’ ” The Court of Appeals postulated that the legislature would not have added such language (the two categories) had it considered that partial losses were already covered under the ‘permanent loss of use’ category. Id.

Plaintiffs claiming they have suffered a serious injury under the permanent loss category must produce competent and admissible medical evidence that they have suffered a permanent and total loss of use, not partial, of a body part in accordance with 5102 (d). Maltaghati v. Vargas, 2024 NY Misc. LEXIS 13673, 2024 NY Slip Op 33821 (U), citing Gaddy v. Eyler, 79 NY2d 955, 957 (1992). If a party has a limited range of motion in one's neck or back or other body part from an accident, then by definition the party has not suffered a total loss of use of such body part(s). Gjoleka v. Caban, 188 AD3d 458, 459 (1st Dept 2020), citing Oberly, 96 NY2d at 295 and Riollano v. Leavey, 173 AD3d 494, 495 (1st Dept 2019).

The medical evidence provided by plaintiffs Yun and Gueye does not rise to the statutorily mandated level of permanent loss of use of a body organ, member, function, or system. The court hereby grants the defendant's motion on the serious injury category of plaintiffs’ permanent loss of use of a body organ, member, function, or system, which is hereby dismissed.

PERMANENT CONSEQUENTIAL LIMITATION & SIGNIFICANT LIMITATION OF USE

“The permanent consequential limitation category requires a plaintiff to establish that the injury is “permanent,” and that the limitation is of consequence or “significant” rather than slight.” Rangel v. Lama, 77 Misc 3d. 1207 (A), *5, supra, citing Altman v. Gassman, 202 AD2d 265 (1st Dept 1994). A permanent consequential limitation requires a greater degree of proof than a significant limitation, as only the former requires proof of permanency.” Id., citation omitted. Permanency is to be determined by the medical profession based on objective medical evidence “demonstrating that the purported limitation is important, significant or of some consequence, as well as permanent.” Maltaghati v. Vargas, 2024 NY Misc. LEXIS 13673, 2024 NY Slip Op 33821(U)(Sup Ct, NY County 2024), citing Palmer v. Moulton, 16 AD3d 933, 935 (3d Dept. 2005). “Mere repetition of the word “permanent” in the physician's affirmation or affidavit is insufficient. Id., citation omitted.”

The significance of an injury may be in the eye of the beholder, even within the medical profession. Since reasonable minds may differ, it becomes a material and triable issue of fact. In the case at bar, proving the existence of a herniated disc without any additional objective medical evidence of significant or consequential limitations does not reach the threshold of serious injury under 5102 (d). The injured party must present objective evidence of limitations on range of motion, positive tests, and other indicia of permanency to meet the threshold. Pommells v. Perez, 4 NY3d 566, (2005). Maltaghati, supra.

A. YUN

Dr. Mannor's report based on objective testing found that Yun had normal ranges of motion as compared to the AMA guidelines. NYSCEF Doc No. 20, p. 6-7. Id. at 7. Yun's submissions in opposition demonstrate that Dr. Schran also evaluated Yun using objective methods and observed the loss of ranges of motion of Yun's cervical spine and lumbar spine. The affirmations by plaintiff's physicians do show quantifiable limits on the range of motion of her cervical spine and lumbar spine, as well as positive tests.

After many treatments by Dr. Schran, plaintiff submitted Dr. Schran's letter dated June 3, 2024, containing the recitation of his evaluation of the ranges of motion of her cervical spine and lumbar spine. All ranges of motion were measured in degrees objectively by a hand-held goniometer. Id. NYSCEF Doc No. 48, p. 415-420 of 421. The “Impression” section of Dr. Schran's report with DOS 09/24/2020 described plaintiff's loss of disc height, disc bulge, left-sided endplate marrow edema, moderate facet arthropathy and mild grade I retrolisthesis, and “severe narrowing of the left lateral recess and neural foramen compressing the descending left L5 nerve root and encroaching on the exiting left L4 nerve root.” NYSCEF Doc No. 48, p. 15-16 of 421. Dr. Schran's Final Diagnosis is sufficient to raise material issues of fact whether Yun sustained a permanent consequential limitation of use and a significant limitation of use. Id. at p. 419 of 421.

Dr. Schran further found that Yun had reached maximal improvement with conservative therapies. Id. at 419 of 421. The evaluation compared her limitations to normal functioning and the purpose and the use of the affected body parts or system. Id. The court in Toure, analyzing similar facts in dispute, ruled that under such a scenario, plaintiff's proofs did raise factual issues sufficient for the trier of fact to decide whether the injuries sustained constitute a permanent consequential limit of the body parts. Toure, 98 NY2d 345, 353-354.

According to the parties’ medical expert reports of the physicians Dr. Mannor, Dr. Schran, Dr. Syed, and Dr. Athas, the experts disagree on many issues, including whether Yun sustained a permanent consequential limitation of use and a significant limitation of use.

GUEYE

Dr. Schran opines that plaintiff's injuries are permanent and consequential in light of his examinations and diagnoses. Such findings indicate that these conditions sufficiently raise issues of material fact to make granting defendant's motion premature. Brown v. Achy, 9 AD3d 30, 32, [1st Dept 2004], citing Toure, 98 NY2d 350. The impingements demonstrated by plaintiff constitute objective facts that fall within these categories, as affirmed by plaintiff's treating physicians. As a result, defendant's motion must be denied at this time.

90/180 DAYS CATEGORY (YUN AND GUEYE)

In Blake v. Portexit Corp., (69 AD3d 426[1st Dept 2010]), the appellate court ruled that even if a plaintiff's affidavit claims that “․ for the first six months after the accident he could not play sports with his children” and had various difficulties like walking, going up stairs, and getting into cars, it does not raise a triable issue of fact when unsupported by medical evidence and because the activities listed therein do not constitute substantially all of his activities. See also Pinkhasov v. Weaver, 57 AD3d 334, 335 (1st Dept 2008).

Defendant has presented a prima facie case for dismissal of Yun's claim relevant to the injuries per the 90/180 category of serious injury. A defendant can cite, as was done here, the plaintiff's own deposition testimony showing that plaintiff was not confined to bed or home for the requisite amount of time. Trujillo-Diaz v. New York City Tr. Auth., 2025 NY Slip Op 30440[U] (Sup Ct NY County 2025), citing Windham v. New York City Tr. Auth., 115 AD3d 597, 599 (1st Dept. 2014). In Pakeman v. Karekezia, 98 AD3d 840 (1st Dept. 2012), the court affirmed dismissing a 90/180 claim on the ground that plaintiff's own testimony refuted the claim. Id.

Here, Yun herself testified that she was only confined to her home or bed from one (1) to three (3) days after the accident. NYSCEF Doc No. 27, p.64-67. Yun further testified that she drove every day after the initial 1-3-day confinement. See also affirmation of counsel.

Defendant has also presented a prima facie case for dismissal of Gueye's claim relevant to the injuries per the 90/180 category. Gueye's affirmation reads that he “was held up in my own bed and home for the first three months after the crash and was unable to run my business which was a mechanic shop ․” NYSCEF Doc No. 46, p. 2. He testified he was confined to his bed for “I would say ninety days” following the accident and to his home for “I would say, I think it was five, six months ․” following the accident. Gueye's deposition testimony included inter alia that he was going to his tow truck shop because “I was losing so much, I had to go back in, but not to work but ․ go back there to sit down and watch, but be there.” NYSCEF Doc No. 28, p. 51. He further testified that he cannot walk his two dogs, play soccer, or ride his motorcycle. There is no indication in the medical reports that restrictions were placed on his activities. Mirroring Yun's testimony, he explained that he loved walking his two large dogs but is unable to because they are large and will just pull while walking.

Plaintiffs’ averments are unsuccessful to show for the reasons previously identified, that one is unable to perform substantially all their customary daily activities that would fall within the relevant period. NYSCEF Doc No. 24 p. 9 of 15. See Gonzelez, 2019 NY Misc LEXIS 31358). See NYSCEF Doc No. 46. Blake, 69 AD3d at 426. Gueye is unsure as to how long he was confined to house and bed, thinking and estimating days and months. An estimate of same by speculation is not a fact or sufficient proof. Defendant further raises Yun's “walking the dog” or her statement about difficulties lifting heavy items, pointing out that same are “insufficient to establish a “serious injury.” Id.

Yun's contentions concerning her claimed inability to run and jump with her son and to walk their two dogs, each being over 100 pounds, along with describing pain in doing household duties like laundry, fail to establish that she is prevented from performing substantially all her customary daily activities within the statutory prescribed period. In sum, her lack of any form of confinement, coupled with her testimony about her being unable to walk her dogs, run or jump with her son, and the like, help to sufficiently establish defendant's prima facie entitlement to summary judgment. Gonzalez v. Concepcion, 2019 N.Y.Misc LEXIS 31358 (Sup Ct, Bronx County 2019). Her ability or inability to conduct those activities is not corroborated by the objective medical evidence in the instant matter. There is no indication that her treating physicians restricted her activities. NYSCEF Doc No. 20, 29. Yun's injuries fall short of satisfying the 90/180 requirement. This court finds Yun's contentions without merit relevant to the 90/180 category, Abreu v. Miller, 181 AD3d 435, 435-436 (1st Dept. 2020) and will therefore grant summary judgment, dismissing the 90/180 allegations.

GAP TIME (YUN AND GUEYE)

In or about May 2021, Yun and Gueye stopped treating with Dr. Schran. In or about April 2024 they returned to Dr. Schran for further treatment. Each of them indicated that they stopped being treated in 2021 as they were no longer improving by treatments. NYSCEF Doc No. 48, p. 416 of 421. Thus, a three (3) year gap exists between treatments, creating issues about the seriousness of the purported injuries.

Defendant cites the case of Pommell, arguing that the case law and its progeny provide that such “gap” in treatment renders a plaintiff's opinion on causation speculative, “and it placed into question the seriousness of the injuries themselves.” Pommells, 4 NY3d 566. Dr. Schran concluded in 2024 that Yun and Gueye had reached maximum medical improvement from their respective treatments, and further treatment was likely not to make any progress to alleviate or to cure the conditions. His determination is sufficient to raise an issue of fact, thereby requiring that the defense motion on gap in treatment be denied.

WHEREFORE, it is hereby

ORDERED that defendant, Lucie M. Nyssens’ motion for summary judgment, is GRANTED on the category of permanent loss of use of a body organ, member, function or system and on the category of 90/180; and it is further

ORDERED that defendant, Lucie M. Nyssens’ motion for summary judgment is DENIED on the category of permanent consequential limitation of use of a body organ or member, and on the category of significant limitation of use of a body function or system; and it is further

ORDERED that within 20 days from the entry of this Order, defendant shall serve a copy of this Order with notice of entry upon the Clerk of the General Clerk's Office, 60 Centre Street, Room 119; and it is further

ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases(accessible at the “E-Filing” page on the court's website at the address www.nycourts.gov/supctmanh.

This constitutes the Decision and Order of the Court.

James G. Clynes, J.