Luna Slater, Plaintiff, v. MARK ALLEN (2026)

The following papers were considered on the motion, filed by defendants Notre Dame Management Group Inc. and Mark A. Allen, seeking an order granting summary judgment in defendants' favor and dismissing the complaint, pursuant to CPLR 3212, on the ground that plaintiff did not sustain a serious injury within the meaning of Article 51 of the Insurance Law:

Papers NYSCEF Doc. Nos.

Notice of Motion, Affirmation in Support, Statement of Material Facts, Exhibits A-G 23-32

Affirmation in Opposition, Response to Statement of Material Facts,

Affidavit of Plaintiff, and Exhibits 1-9 35-46

Reply Affirmation 47

BACKGROUND

Plaintiff Luna Slater commenced this action on April 11, 2025 seeking damages for injuries to her lumbar spine and left knee that she allegedly sustained on July 17, 2024 while attempting to enter a motor vehicle operated by Mark A. Allen, and owned by Notre Dame Management Group Inc. The complaint, as amended, alleges that as a result of defendants' negligence, plaintiff was caused to sustain personal injuries which resulted in dismemberment, significant disfigurement, a fracture, permanent loss of the use of a bodily organ or member, significant limitation of the use of a bodily function or system, and/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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

On July 23, 2025, defendants filed an answer to the complaint which raised various affirmative defenses including lack of jurisdiction pursuant to Article 51 of the Insurance Law, also known as the "no-fault law," which prohibits an injured plaintiff from recovering non-economic damages except in the case of a serious injury, as defined in Insurance Law § 5102 (d).

Defendants now move for summary judgment arguing that plaintiff's injuries do not meet the statutory threshold requirements of "serious injury," as evidenced by plaintiff's bill of particulars, which only alleges soft tissue injuries, and the reports of defendants' independent medical examination doctors, who found no evidence of serious injury (NYCEF Doc. Nos. 30-32). In opposition, plaintiff argues that there is an issue of fact as to whether plaintiff sustained a serious injury, as evidenced by plaintiff's sworn affidavit, deposition transcript and verified bill of particulars, the affirmations of her treating and examining physicians, and the objective medical evidence upon which the physician's rely (NYSCEF Doc. Nos. 38-46). As such, plaintiff argues, defendants are not entitled to summary judgment dismissing the complaint.

ANALYSIS

A plaintiff cannot recover damages for personal injuries sustained in a motor vehicle accident against a defendant driver unless the alleged injuries constitute a "serious injury" as defined in section 5102 (d) of the Insurance Law. "Serious injury" means a personal injury resulting in death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent and total loss of use of a body organ, member, function or system, permanent consequential limitation of use of a body organ or member, and significant limitation of use of a body function or system (Insurance Law § 5102 [d] [i]-[viii]).¹ Where a plaintiff is claiming serious injury arising from the "permanent consequential limitation" or "significant limitation" categories of serious injury, the determination of "whether a limitation of use or function is 'significant' or 'consequential' (i.e., important * * *) relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part" (Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002] [quoting Dufel v Green, 84 NY2d 795, 798 [1995]).

A defendant moving for summary judgment on the issue of serious injury has the initial burden of establishing, prima facie, that the plaintiff's injuries do not meet the serious injury threshold under the no-fault law (Toure, 98 NY2d at 352). "A defendant can establish that the plaintiff's injuries are not serious within the meaning of the no fault law by submitting the affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiff's claim" (Nuñez v Teel, 162 AD3d 1058, 1059 [2d Dept 2018] [citation omitted]). Once such a showing has been made, the burden shifts to the plaintiff to come forward with objective proof of a serious injury sufficient to raise a triable issue of fact (Toure, 98 NY2d 345; Zuckerman v City of New York, 49 NY2d 557 [1980]). "Such evidence may take the form of an expert's designation of a numeric percentage of a plaintiff's loss of range of motion or an expert's qualitative assessment of a plaintiff's condition, provided that the qualitative evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system" (NY PJI 2:88E, Comment).

At the outset, the Court notes that the report of defendants' expert radiologist, Sheldon P. Feit, M.D., DABR, is not in admissible form because it is only made "pursuant to CPLR 2106 under the penalties of perjury" (NYSCEF Doc. No. 32 at 2) and fails to include the specific language required by CPLR 2106 (see Beier v Giglio, 230 AD3d 733, 734 [2d Dept 2024]; see also Loadholt v New York City Tr. Auth., 12 AD3d 352 [2d Dept 2004]).

Nevertheless, the properly sworn report of defendants' orthopedic expert Hugh Selznick, M.D., F.A.C.S., is sufficient to establish, prima facie, that plaintiff did not suffer a serious injury within the meaning of the no fault law. Dr. Selznick conducted an orthopedic examination of plaintiff on February 2, 2026, more than 18 months from the date of the accident. Upon examination, Dr. Selznick found that plaintiff has a normal gait, toe/heel walk, and lordotic curve, with no spasm or tenderness noted over the parspinal musculature on palpation, normal range of motion of the lumber spine, normal patellar and Achilles deep tendon reflexes, no sensory deficit, and normal muscle strength of the lower extremities with no atrophy, radiation of pain, numbness or tingling. With respect to plaintiff's left knee, Dr. Selznick found plaintiff's range of motion to be normal without crepitus, no redness, swelling or increased temperature, no tenderness above the joint line or bony structures, medial or lateral joint lines, no joint effusion, no obvious atrophy, and no instability to varus or valgus stress. Upon these findings, Dr. Selznick concludes that the alleged injuries to plaintiff's lumber spine and left knee are resolved, and plaintiff has fully healed from the left knee surgery. Dr. Selznick further concludes that there is no objective evidence of permanency or disability, and plaintiff may work and perform her daily living activities without restrictions stemming from the accident.

In opposition, plaintiff submits, among other things, the affirmation of her attorney, which is also not properly sworn pursuant to CPLR 2106, and therefore, only considered to the extent it refers to documentary evidence and deposition testimony, and raises legal arguments therein (see Scanlon v Long Beach Pub Sch, 197 AD2d 567 [2d Dept 1993]). Plaintiff's submission of her sworn affidavit and the properly sworn affirmations of her treating and examining physicians are nevertheless sufficient to raise an issue of fact as to whether plaintiff suffered a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system. The affirmation of Dr. Nicolas El-Khoury, who reviewed plaintiff's MRI films and performed range of motion testing shortly after the accident on August 3, 2024, and again on April 25, 2026, reveals disc bulging in plaintiff's lumbar spine, a meniscus tear in plaintiff's left knee, and a reduced range of motion in both the lumbar spine and left knee — a conclusion supported with specific quantitative measurements of plaintiff's limitations. Dr. El-Khoury also opines that based upon plaintiff's description of the accident, and his initial examination of plaintiff, there is a direct causal relationship between the July 17, 2024 accident and plaintiff's injuries and disabilities.

According to the affirmation of Dr. G. Alex Simpson, plaintiff suffered tears to the medial meniscus of her left knee which Dr. Simpson visually observed during plaintiff's April 17, 2025 arthroscopic surgery. Dr. Simpson further affirmed that there is no evidence of any significant degenerative or pre-existing conditions to plaintiff's injuries, other than what would be considered an asymptomatic age-related condition. Dr. Simpson also opines that, based upon his examination of plaintiff and what he observed during the surgical procedure, plaintiff's injuries to the left knee are consistent with and causally related to the July 17, 2024 accident.

Dr. Simpson's findings are buttressed by the affirmation of Ashley Simela, D.O., who is the head of Orthopedic Surgery at DHD Medical, P.C., where plaintiff underwent the arthroscopic surgery to her left knee. Based upon her review of the radiological imaging, MRI report, and photos taken during the arthroscopic procedure, along with an examination of plaintiff and range of motion testing on May 8, 2026, Dr. Simela opines that there is no evidence of any significant degenerative or pre-existing condition to the injuries, plaintiff suffered post traumatic changes to her knee as a result of the July 17, 2024 accident, and plaintiff has sustained a permanent consequential limitation and a significant limitation in the use, function and motion of her left knee and will experience future residual pain and discomfort as well as limitation of motion.

Lastly, the affirmation of plaintiff's pain management physician, Dr. Boleslav Kosharskyy reveals that plaintiff received epidural steroid injections to her lumbar spine on June 5, 2025 and has been recommended to undergo a lumbar spine percutaneous discectomy.

Based on the foregoing, defendants are not entitled to summary judgment dismissing the complaint on the ground that plaintiff's injuries are not "serious" within the meaning of the no-fault law. The Court has considered defendants' argument that an unexplained 10-month gap in plaintiff's treatment alone warrants the granting of defendants' motion. However, the record is not dispositive in this regard. While Dr. El-Khoury noted a cessation in physical therapy as of January 2025, Dr. Kosharskyy's affirmation and the records upon which he relies demonstrate that plaintiff had follow up visits for pain management through August 28, 2025, and was directed to continue physical therapy for six-to-eight weeks. Moreover, plaintiff testified at her deposition that she had been attending physical therapy two-to-three times per week for more than one year, including as recently as December 1, 2025. Thus, the record does not conclusively establish a 10-month gap in treatment.

The parties' remaining contentions are either without merit or rendered moot by this decision and order.

Accordingly, it is hereby

ORDERED that defendants' motion is DENIED; and it is further

ORDERED that the parties shall appear in the Trial Ready Party, on a date and time to be provided by that Part, for the scheduling of a trial.

This constitutes the decision and order of the Court.

Dated: June 29, 2026

White Plains, New York

HON. ROBERT S. ONDROVIC

Justice of the Supreme Court

FOOTNOTES

1.   As of May 26, 2026, the definition of "serious injury" no longer includes the so-called "90/180 category" that plaintiff alleged in her amended complaint (Insurance Law § 5102 [d], as amended by L 2026, ch 58, a. 10008-c).

Robert S. Ondrovic, J.