Tyriek D. Dathan, Plaintiff, v. James W. Hough, Defendant. (2026)

This Decision and Order addresses three motions: (1) defendant James W. Hough's motion for summary judgment seeking to dismiss the complaint on the grounds that plaintiff Tyriek D. Dathan did not sustain a serious injury pursuant to Insurance Law § 5102; (2) plaintiff's motion for summary judgment on the issues of "negligence and proximate cause," as well as dismissing defendant's related affirmative defenses;¹ and (3) defendant's motion to preclude plaintiff's supplemental bill of particulars to the extent it alleges aggravation of pre-existing conditions that were not previously pled. Plaintiff opposes both of defendant's motions. For his part, defendant does not oppose plaintiff's motion on "negligence" but strongly disputes causation due to plaintiff's prior motor vehicle accidents and failure to properly plead aggravation of pre-existing conditions.

The court heard oral argument of counsel on August 25, 2026.

BACKGROUND

I. This Accident

This action arises from a motor vehicle accident that occurred on January 8, 2024. According to plaintiff, he was operating a vehicle and he stopped at a red light at the intersection of Clinton Street and Murray Street in the City of Binghamton, New York, when his vehicle was struck in the rear by a vehicle operated by defendant.² It is undisputed that plaintiff was transported by ambulance to a hospital and released that same day. Plaintiff sought medical treatment thereafter as discussed below.

II. Litigation History

On February 22, 2024, this action was commenced upon the filing of a summons and

complaint in the Broome County Clerk's Office. The parties engaged in discovery and the trial note of issue was filed on March 20, 2026. The scheduling of a pre-trial conference has been held in abeyance pending the filing and resolution of these motions.

The focus of the motion regarding the Bill of Particulars is plaintiff's admission in his deposition testimony that he had been in two prior motor vehicle accidents, one in 2018 and another on an unknown date between 2018 and 2024.  ³ The parties focus, as does the court, on the 2018 accident (hereinafter the "2018 Accident"), because plaintiff commenced a personal lawsuit regarding the 2018 Accident, claimed injuries strikingly similar to this accident, and the 2018 Accident was dismissed upon defendant's motion for summary judgment due to plaintiff's failure to establish a serious injury (Dathan v Perhach, Sup Ct, Broome County, June 4, 2024, Insinga, J., index No. EFCA2021000701).

DISCUSSION

As noted above, the court is presented with three motions. The court will first address plaintiff's motion for summary judgment on "negligence and proximate cause," then defendant's motion to strike the supplemental bill of particulars, and finally defendant's motion for summary judgment on the issue of serious injury.

I. PLAINTIFF'S MOTION: "NEGLIGENCE AND PROXIMATE CAUSE"

Plaintiff moves for summary judgment on the issues of negligence and causation alleging the record reflects he was at a full stop at a traffic light when he was rear-ended by defendant.

Before proceeding, the court notes that the terms "negligence" and "liability" are terms often used interchangeably in motor vehicle cases. The court will use the phrase "negligence" to refer to plaintiff's fault-based motion for summary judgment, as distinguished from "liability," which includes both negligence and serious injury (Ruzycki v Baker, 301 AD2d 48, 51 [4th Dept 2002]).

It is well-settled that a rear-end collision with a stopped vehicle establishes a prima facie

case of negligence against the operator of the moving vehicle; thus, plaintiff's proof established a prima facie case of negligence (Tripp v GELCO Corp., 260 AD2d 925 [3d Dept 1999]). Here, defendant has conceded negligence by stating, "Defendant acknowledges that the rear-end nature of the collision is dispositive for liability [meaning negligence] in the absence of extraordinary circumstances and does not contest that issue." (NYSCEF Doc No. 34, p 1). In view of this concession, the court finds that plaintiff's motion for summary judgment on the issue of negligence should be granted, with the issues of causation deferred to discussion below in the context of defendant's motion on the serious injury issues.

Plaintiff's motion for partial summary judgment on negligence is granted, with causation discussed below.

II. DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S SUPPLEMENTAL BILL OF PARTICULARS

Next, the court turns to defendant's motion to strike plaintiff's supplemental bill of particulars. First, the court will set out the timeline of events, then turn to an analysis of the issue presented.

Plaintiff served a "Plaintiff's Response to Defendant James W. Hough Verified Bill of Particulars" [hereinafter "Bill of Particulars"] dated May 20, 2025, alleging three injuries to his cervical spine, thoracic spine, and lumbar spine simply as follows:

"[o]n the date of the occurrence, Plaintiff sustained injuries including, but not limited, to the cervical spine, thoracic spine, and lumbar spine. These injuries include:

Cervical spine: associated soft tissue injuries;

Thoracic spine: associated soft tissue injuries;

Lumbar spine: associated soft tissue injuries . . . . "

(NYSCEF Doc No. 57). Notably, there is no mention of pre-existing injuries or any aggravation thereof in this Bill of Particulars.

One year later, on May 19, 2026, plaintiff served a document via email on defendants entitled "Plaintiff's Supplemental Verified Response to Defendant, James W. Hough, Demand for Bill of Particulars" (NYSCEF Doc No. 56 [hereinafter "Supplemental Bill of Particulars"]). The court notes that plaintiff's Supplemental Bill of Particulars is incorrectly dated May 19, 2025, rather than May 19, 2026. This Supplemental Bill of Particulars includes an extensive revision to plaintiff's original Bill of Particulars listing plaintiff's alleged injuries, too lengthy to recite here, but now alleging, in part, as follows:

"[t]he Plaintiff, Tyriek Dathan, sustained the following injuries as a direct result of the collision. All injuries are permanent except those that are superficial in nature.

Lumbar back pain/lower back pain, including aggravation, exacerbation, activation, and/or reactivation of previously asymptomatic and/or resolved lumbar conditions.

Cervical back pain/upper back pain. to the extent defendants claim the cervical injury relates to a pre-existing condition, Plaintiff will alternatively claim that the injury wasaggravated, activated and/or exacerbated by the collision.

thoracic back pain/mid back pain. to the extent defendants claim the thoracic injury relates to a pre-existing condition. Plaintiff will alternatively claim that the injury was aggravated, activated and/or exacerbated by the collision."

(Id.) (emphases added).

In the interim between plaintiff's original Bill of Particulars served May 19, 2025, and plaintiff's Supplemental Bill of Particulars served May 19, 2026, the parties conducted depositions on August 18, 2025 and August 20, 2025; discovery had been completed by November 11, 2025; and the Trial Note of Issue was filed on March 30, 2026. Based upon the date of filing of the Trial Note of Issue, dispositive motions were due by May 19, 2026.

As noted above, on May 19, 2026, defendant filed his motion for summary judgment (at 5:05 p.m.) and plaintiff filed his motion for summary judgment (at 10:23 p.m.). Additionally, on May 19, 2026, at 11:35 p.m., plaintiff's counsel emailed plaintiff's Supplemental Bill of Particulars to defense counsel (NYSCEF Doc No. 60). On May 21, 2026, defendant filed a "Notice of Rejection of Plaintiff's Supplemental Verified Bill of Particulars and Supplemental Responses to Plaintiff's Combined Demands as untimely and improper" (NYSCEF Doc No. 45).⁴

Turning to the substance of defendant's motion to strike the "Supplemental Bill of Particulars" dated May 19, 2026, defendant alleges the motion should be granted on multiple grounds, namely that the Supplemental Bill of Particulars alleges a new theory of aggravation of a pre-existing condition; was served without leave of court after the filing of the Trial Note of Issue; was served after the close of discovery; and was served in bad faith for the sole purpose of preemptively opposing defendant's motion.

CPLR §§ 3042 (b) and 3043 govern amended and supplemental bills of particular, respectively. CPLR § 3042 (b) permits one amendment of the bill as of right, provided it is made prior to the filing of the note of issue. Here, the Trial Note of Issue was filed on March 20, 2026, so plaintiff was beyond the statutory time to serve an amended bill of particulars as of right. CPLR § 3043 (b) allows a plaintiff to serve a supplemental bill of particulars, even after the trial note of issue is filed, but it cannot be used to assert a new cause of action or assert a new injury. While statutory language does not prohibit a new "theory," case law is overwhelming that a new theory may not be contained in a supplemental bill of particulars absent a showing of "special and extraordinary circumstances." The court finds the following analysis instructive:

It is well settled law that if Plaintiff is not merely updating allegations of special damages previously asserted in its Bill of Particulars, then leave to serve the disputed bill is necessary. Thus, Plaintiff's self-labeled "supplemental" bill of particulars, in reality, may be an amended bill of particulars if it sought to add new injuries or a new category of damages. While leave to amend a bill of particulars is ordinarily to be freely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion should be exercised in a "discreet, circumspect, prudent and cautious manner.

***

Plaintiff is not entitled to serve an amended Bill of Particulars after the Note of Issue is filed without leave of the Court. Leave to serve an amended bill of particulars should not be granted where a [note of issue] has been filed, except upon a showing of special and extraordinary circumstances (Nieto v Deveau, 51 Misc 3d 1027 [Civ Ct, Kings County 2016] [internal quotations and citations omitted]).

The court finds that plaintiff's "Supplemental Bill of Particulars" dated May 19, 2026, is, in reality an amended bill of particulars because it alleges new injuries, namely aggravation of pre-existing injuries to his cervical, thoracic and lumbar spine.⁵ Plaintiff argues that the original Bill of Particulars identified the cervical, thoracic, and lumbar spines as injured areas, and the Supplemental Bill of Particulars merely provided "greater specificity" concerning the aggravation of those injuries from prior accidents, rather than asserting a new cause of action or legal theory. The court finds this argument unavailing, and in so holding, relies on Barrera vs. City of New York. In that case, the Appellate Division found the plaintiff's assertion of aggravation of prior injuries, asserted for the first time in an amended bill of particulars, constituted a "new theory not raised either in the complaint or in the original bill of particulars," and the plaintiff needed leave of court to serve the subsequent bill of particulars asserting the new aggravation theory (Barrera v City of New York, 265 AD2d 516, 518 [2d Dept 1999]; see also, Stewart v Dunkleman, 128 AD3d 1338, 1339 [4th Dept 2015]; Al-Khilewi v R.Turman, 82 AD3d 1021, 1022 [2011]).

While the court is mindful of some trial level cases allowing such amendments when, as here, a trial has not yet been scheduled (see, e.g., Lazzari v Qualcon Construction, LLC, 62 Misc 3d 1082 [Bronx County 2019]), the court finds the timeline of events in this matter particularly troubling and prejudicial to defendant.⁶ Notably, plaintiff did not seek leave to file an amended bill of particulars prior to its service or even now, as a cross-motion, in response to defendant's motion to strike the same. Moreover, when the Supplemental Bill of Particulars was served on May 19, 2026, depositions had long since been completed in August 2025, the trial note of issue filed in March 2026, and dispositive motions had just been filed relying on the injuries as alleged. In addition, plaintiff's prior 2018 Accident occurred eight years before the filing of the Supplemental Bill of Particulars in May 2026. Finally, the Decision and Order dismissing plaintiff's 2018 Accident was issued June 5, 2024, two years prior to the filing of the Supplemental Bill of Particulars in May 2026.

In this court's view, this scenario is the definition of prejudice to defendant, who had conducted discovery and filed a dispositive motion based on the original Bill of Particulars. If the court were to countenance this filing, the trial note of issue would need to be stricken, discovery restarted, new independent medical examinations ("IMEs") conducted and new dispositive motions filed, most likely leading to at least a year-long delay. Plaintiff has failed to offer a reasonable excuse for the delay in seeking to amend the bill of particulars until more than two years after the 2024 accident and after the filing of the note of issue. While defendant was diligent enough to be aware of the prior accidents and ask questions about them in depositions, as plaintiff argues in opposition, this is not sufficient to overcome the prejudice to which defendant would be subjected if he had to reorient his defense strategy on the eve of trial (see, e.g., Barrera, supra at 518).

The court finds that plaintiff's amended bill of particulars, styled as a Supplemental Bill of Particulars, is "[w]ithout legal effect because it was served after the filing of the note of issue without leave of court" (Lazzari, 62 Misc at 1084). Thus, defendant's motion to strike plaintiff's Supplemental Bill of Particulars dated May 19, 2026 is granted and plaintiff's case is limited to his original pleadings and Bill of Particulars dated May 20, 2025: namely, that this accident caused original injuries to his cervical, thoracic, and lumbar spine.

III. DEFENDANT'S MOTION: SERIOUS INJURY

It is well-settled that on a defense motion seeking summary judgment pursuant to CPLR § 3212 relative to the serious injury threshold, the defendant "[b]ears the initial burden of establishing the absence of a serious injury as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (McElroy v Sivasubramaniam, 305 AD2d 944, 945 [3d Dept 2003]). The proponent's "[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If defendants meet their initial burden, then the burden shifts "[t]o plaintiff to demonstrate the existence of a triable issue of fact, through competent medical evidence based on objective findings and diagnostic tests [citations omitted]" (Armstrong v Morris, 301 AD2d 931, 932 [3d Dept 2003]). The court must accept the non-moving party's evidence as true and grant them every favorable inference (Hourigan v McGarry, 106 AD2d 845 [3d Dept 1984], lv dismissed 65 NY2d 637 [1985]).

Plaintiff alleges he suffered a serious injury to his cervical spine, thoracic spine, and lumbar spine under three statutory categories as a result of this accident, namely: (1) permanent consequential limitation of use of a body organ or member; (2) significant limitation of use of a body function or system; and (3) 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; NYSCEF Doc No. 20, ¶ 18, p 5-6). The court has granted defendant's motion regarding the addition of an aggravation of pre-existing injuries for the reasons stated above.

A. SIGNIFICANT LIMITATION OF USE OF A BODY FUNCTION OR SYSTEM AND PERMANENT CONSEQUENTIAL LIMITATION OF USE OF A BODY ORGAN OR MEMBER

The court will address these two categories together since they involve similar considerations. The Court of Appeals has explained that "limitation of use" may be established in one of two ways, namely by medical proof of a quantitative percentage (e.g., a numeric percentage of a loss of range of motion) or, in the alternative, medical proof of a functional impairment (excluding loss of range of motion) by way of a medical expert's qualitative assessment of plaintiff's current condition as compared to their normal function (Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The term "significant" means the alleged limitation must be shown to be more than minor, mild or slight as established by expert medical proof (Licari v Elliott, 57 NY2d 230, 236 [1982]). Mere subjective complaints of pain, unsupported by objective medical findings or quantified range-of-motion limitations, are insufficient to defeat summary judgment (Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345, 350 [2002]; Licari, 57 NY2d at 236).

Defendant has the initial burden of submitting sufficient proof to eliminate any material factual issues as to the categories of serious injury alleged by plaintiff (McElroy, 305 AD2d 944). In support of his motion on these categories, defendant submits a six-page IME report from Adam Soyer, D.O. dated October 28, 2025, plaintiff's medical and employment records, records related to the subject accident, and documents from the prior court proceeding.

1. Cervical Spine

Defendant's expert, Dr. Soyer, conducted a physical examination of plaintiff during an IME on October 23, 2025, more than a year and a half after the accident. Dr. Soyer opines that plaintiff had normal ranges of motion for flexion in the cervical spine, and 15- and 20-degree deviations from normal or extension and left and right rotation in his cervical spine (NYSCEF Doc No. 22, p. 6). Dr. Soyer noted no spasms, with sensory responses intact throughout plaintiff's upper extremities; minimal to no paraspinal tenderness; intact reflexes and sensory responses; and full muscle strength for plaintiff's cervical spine. Dr. Soyer found no objective findings to support injury-related or physiologic reasons for motion restriction of cervical spine, with any limitations considered as "anatomical restriction" (Id.).

Based upon the forgoing, the court finds the report meets defendant's burden, thereby shifting the burden to plaintiff.

In opposition, defendant did not present any expert opinion regarding objective medical findings about plaintiff's cervical spine and instead argues that Dr. Soyer's report merely describes the cervical spinal strain as having "resolved" without establishing the condition was caused by the 2018 accident rather than the 2024 accident. At oral argument, defendant's counsel conceded that their experts focused their analysis on plaintiff's lumbar region, without emphasis on any objective medical findings regarding plaintiff's cervical spine.

In response to this portion of the summary judgment motion, plaintiff failed to present sufficient evidence to create a triable issue of material fact. As such, the court hereby grants defendant's motion for summary judgment dismissing the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories, as it pertains to plaintiff's claim for injuries to his cervical spine.

2. Thoracic Spine

Dr. Soyer opines that an examination of plaintiff's thoracic spine revealed no paraspinal spasms or tenderness (Id. at p. 4). Plaintiff was noted as having normal ranges of motion for flexion in the cervical and thoracic spine and a 25-degree deviation from normal for right and left lateral bending in the thoracic spine (Id.). Dr. Soyer indicated there was no objective finding to support injury-related or physiologic reasons for motion restriction of plaintiff's thoracic spine, with any limitations considered as anatomical restrictions (Id. at p. 6).

Based upon the forgoing, the court finds the report meets defendant's burden, thereby shifting the burden to plaintiff.

In opposition, plaintiff submits the portion of the expert report of Dr. Roger Ng, M.D., who opined plaintiff suffered bilateral lower thoracic tenderness, which he finds was caused by the 2024 accident (NYSCEF Doc No. 64, p. 15). At oral argument, however, plaintiff's counsel conceded plaintiff's experts provided no substantive analysis on plaintiff's thoracic spine.

Regarding plaintiff's claim for his thoracic spine, plaintiff has not presented sufficient objective medical evidence to create an issue of material fact. The court hereby grants defendant's motion for summary judgment dismissing the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories as it pertains to plaintiff's claim related to his thoracic spine.

3. Lumbar Spine

Dr. Soyer opined that plaintiff had 5-degree deviations from normal for extension, right, and left lateral bending in his lumbar spine (NYSCEF Doc No. 22, p. 5). Plaintiff's extension in his lumbar spine was noted to be 10 degrees above normal (Id. at pp. 4-5). Dr. Soyer noted no evidence of spasms, minimal to no paraspinal tenderness, intact reflexes and sensory responses, and full muscle strength in plaintiff's lumbar spine (Id. at 5).

Based upon the forgoing, the court finds the report meets defendant's burden, thereby shifting the burden to plaintiff.

In opposition, plaintiff submitted expert reports from Dr. Roger Ng, M.D., and Dr. Joseph Serghany, M.D. Dr. Ng performed a personal examination of plaintiff on August 3, 2026 and reviewed plaintiff's medical records. The examination demonstrated plaintiff experiences tenderness to palpation of the lower thoracic paraspinous muscles bilaterally, tenderness to the lower lumbar spine bilaterally, and a positive facet maneuver with extension and rotation, right greater than left (NYSCEF Doc No. 67, pp. 3-4). Dr. Ng also reviewed goniometric lumbar range of motion measurements performed by Joshua Hundley, DPT, during an evaluation performed on plaintiff by Dr. Hundley on April 23, 2026. Dr. Ng noted that the April 2026 evaluation revealed the following lumbar range of motion deficits:

10% loss of lumbar flexion

75% loss of lumbar extension

50-75% loss of left lumbar rotation

50-75% loss of right lumbar rotation

50-75% loss of left lumbar side bending

50-75% loss of right lumbar side bending

(Id. at p. 4). According to Dr. Ng, these findings demonstrate objectively measurable limitations in lumbar mobility and are consistent with the observations he made during his personal examination of plaintiff.

Dr. Ng also opined that based on his review of plaintiff's medical history and records, plaintiff returned to his baseline level of functioning following the March 2018 collision (Id.). He concludes that the lumbar limitations are permanent in nature and causally related to the January 8, 2024 motor vehicle accident (Id.).

Dr. Serghany, board-certified in Diagnostic Radiology, reviewed the results of the MRI performed on plaintiff's lumbar spine on May 23, 2024. Dr. Serghany identified left-sided foraminal disc bulges at L3-L4 and L4-L5, with effacement of the undersurface of the exiting left L3 and L4 nerve roots; a moderate broad-based posterior disc herniation at L5-S1, asymmetric to the left paracentrally, extending approximately 5-5.5 mm into the spinal canal and compressing the thecal sac; minimal grade 1 retrolisthesis at L5-S1, mild disc desiccation, minimal loss of disc height, and mild left foraminal ridging and bulging with slight effacement of the undersurface of the exiting left L5 nerve root (NYSCEF Doc No. 68, p. 4). Dr. Serghany also reviewed the June 6, 2025 lumbar spine MRI report, finding a continued demonstration of a central disc protrusion at the L5-S1 level with mild facet hypertrophy (Id. at p. 5).

Dr. Serghany explained that he also reviewed a 2018 lumbar spine x-ray report relating to plaintiff's prior motor vehicle collision and confirmed that he believes the available 2018 report does not demonstrate the existence of the L5-S1 structural abnormality (Id. at p. 4). He opines that the 2024 motor vehicle collision caused the "significant" L5-S1 disc pathology (Id. at pp. 4-5).

Plaintiff also cites the reports issued by Jonathan Paul, M.D., a board-certified orthopedic surgeon who examined plaintiff on April 11, 2024, June 13, 2024, and October 29, 2025. Dr. Paul documented objective lumbar range-of-motion deficits of 20% or greater and confirmed plaintiff's need for further orthopedic treatment (NYSCEF Doc Nos. 71-73).

Plaintiff also cites Dr. Soyer's own examination of plaintiff in October 2025, which showed a 20% reduction in two categories of lumbar range of motion. In opposing this motion, plaintiff argues the foregoing create a triable issue of material fact on his serious injury claim regarding his lumbar spine.

The court finds the competing theories about the extent and cause of plaintiff's lumbar spine injury create a classic credibility battle of the experts that may not be resolved on a motion for summary judgment (Corbett v County of Onondaga, 291 AD2d 886 [4th Dept 2002]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623 [2d Dept 2003]). The court finds that plaintiff has presented sufficient medical proof of a quantitative percentage creating questions of fact on the issue of a serious injury to plaintiff's lumbar spine. Thus, defendant's motion for summary judgment dismissing plaintiff's claim of serious injury for his lumbar spine injury, under the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories, is denied.

V. 90/180 DAY CATEGORY

The so-called 90/180 day category ⁷ is defined as a "[m]edically 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 [d]). For ease of reference the court will refer to this as the "90/180 day category." A successful claim under this category requires the proof establish that the curtailment of plaintiff's usual and customary activities rise to the level of "[a] great extent rather than some slight curtailment" and that said curtailment is based upon objective medical findings (Licari, 57 NY2d at 236).

Additionally, with respect to this category, the court is only concerned with a very limited time frame, namely the 180 days immediately following the accident in relation to plaintiff's usual and customary activities. This accident occurred on January 8, 2024, so the 180-day period relevant to a determination under this category is January 8, 2024 through July 6, 2024.

The court notes that defendant's expert, Dr. Soyer, did not perform his IME until October 23, 2025, well beyond the relevant 180-day period and, as such, his findings will not be considered in this category. That said, defendant may rely upon plaintiff's bill of particulars and deposition testimony in attempting to satisfy its burden (Boutsis v Reaves, 31 Misc 3d 1238[A], 2011 NY Slip Op 51035[U] [Sup Ct, Kings County, 2011]).

Notably, defendant argues plaintiff testified in his deposition that he returned to work as a full-time truck driver within a few days of the accident, only missing five days of work (NYSCEF Doc No. 21, p. 78; NYSCEF Doc No. 30). Plaintiff also testified about going to the gym multiple times per week during the requisite period, walking on a treadmill, and doing push-ups (Id. at 20; 111-12). Based on plaintiff's own testimony, defendant has demonstrated plaintiff was able to perform his usual and customary activities during the 90/180 period. The court finds, therefore, that defendant has met his burden, thereby shifting the burden to plaintiff.

In opposition, plaintiff argues Dr. Soyer did not provide a medical opinion that plaintiff was capable of performing substantially all of his customary activities during the requisite period. Counsel focuses on Dr. Soyer's notation that plaintiff missed seven days of work and argues that lost time from employment is not the only focus of inquiry under this category. The court finds plaintiff's opposition to be supported only by counsel's conclusions, without any support in or reference to the record. As such, plaintiff has failed to create a triable issue of material fact, and defendant's motion for summary judgment dismissing the 90/180 category is granted.

CONCLUSION

In view of the foregoing:

1. Plaintiff's motion for summary judgment on the issue of negligence is GRANTED; and

2. Defendant's motion to preclude plaintiff's supplemental bill of particulars is GRANTED; and

3. Defendant's motion for summary judgment seeking to dismiss the complaint on the grounds that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 is determined, as follows:

A. Defendant's motion for summary judgment dismissing the complaint regarding the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories regarding plaintiff's thoracic spine and cervical spine is GRANTED; and

B. Defendant's motion for summary judgment dismissing the complaint regarding the significant limitation of use of a body function or system and permanent consequential limitation of use of a body organ or member categories regarding plaintiff's lumbar spine is DENIED; and

B. Defendants' motion for summary judgment dismissing the 90/180 day category is GRANTED.

The Trial Note of Issue was filed on March 20, 2026, but the scheduling of a pre-trial conference has been held in abeyance pending the resolution of these motions. The court will contact counsel to schedule a pretrial conference.

It is so ordered.

HON. OLIVER N. BLAISE, III

Justice, Supreme Court

Dated: September 2, 2026

Binghamton, New York

All papers submitted in connection with this motion and the Decision and Order have been electronically filed with the Broome County Clerk through the NYSCEF System.

FOOTNOTES

1.   Plaintiff does not specify which affirmative defenses he seeks to dismiss.

2.   The vehicle operated by plaintiff was owned by non-party Faith Hinkey.

3.   There was no proof submitted by either party regarding the accident that occurred sometime between 2018 and 2024.

4.   Defendant's motion to strike plaintiff's Supplemental Bill of Particulars was filed on June 5, 2026.

5.   Parenthetically, even if the court were to have accepted this filing truly as a supplemental bill of particulars, and not an amended bill of particulars, such filing after the conclusion of discovery and the same day as the filing of the dispositive motions is clearly prejudicial to defendant for the same reasons stated herein.

6.   Even if deemed a Supplemental Bill of Particulars (which would be timely because the trial is not yet scheduled), the filing after the conclusion of discovery and the same day as dispositive motions were filed is highly prejudicial.

7.   New York Insurance Law § 1502 was amended on May 27, 2026 to repeal the 90/180 category as an avenue of recovery for a plaintiff who pursues a serious injury claim (2026 NY Assembly Bill 10008). The repeal applies to actions commenced on or after the effective date, so the category is still applicable in this matter, commenced in 2024.

Oliver N. Blaise, III, J.