We agree with defendant that plaintiffs improperly asserted a "new injury" in their "supplemental verified bill of particulars" (CPLR 3043[b] ; see Schreiber v. University of Rochester Med. Ctr., 74 A.D.3d 1812, 1812, 903 N.Y.S.2d 636 ; cf. CPLR 3042[b] ; Tate v. Colabello, 58 N.Y.2d 84, 86–87, 459 N.Y.S.2d 422, 445 N.E.2d 1101 ), and that the court erred in considering that new category of serious injury inasmuch as it was raised for the first time in opposition to defendant's motion for summary judgment (see Christopher V. v. James A. Leasing, Inc., 115 A.D.3d 462, 462, 982 N.Y.S.2d 32 ; see also Guzek v. B & L Wholesale Supply, Inc., 126 A.D.3d 1506, 1507, 6 N.Y.S.3d 875 ; Robinson v. Schiavoni, 249 A.D.2d 991, 992, 672 N.Y.S.2d 560 ). We thus conclude that the claim of significant disfigurement was not cognizable by the court (see Torres v. Dwyer, 84 A.D.3d 626, 626, 923 N.Y.S.2d 512 ), that it was error for the court to consider the new injury claim (see Christopher V., 115 A.D.3d at 462, 982 N.Y.S.2d 32 ), and that the court should have disregarded evidence related to that category of serious injury (see MacDonald v. Meierhoffer, 13 A.D.3d 689, 689, 786 N.Y.S.2d 228 ). To the extent that the court's order incorporated the court's written decision addressing the merits of that category of serious injury, we vacate that part of the court's order.

Defendants established prima facie that plaintiff did not sustain “significant disfigurement” (Insurance Law § 5102[d] ) as a result of the motor vehicle accident. Their plastic surgeon described the scar on plaintiff's forehead as “well healed” and “barely perceptible,” and their neurologist noted that the scar was “hardly visible”; a photograph taken by the plastic surgeon bears out these descriptions (see Christopher V. v. James A. Leasing, Inc., 115 A.D.3d 462, 982 N.Y.S.2d 32 [1st Dept.2014] ; Sidibe v. Cordero, 79 A.D.3d 536, 913 N.Y.S.2d 78 [1st Dept.2010] ). In opposition, plaintiff failed to submit a recent photograph of the scar to rebut defendants' showing (see Aguilar v. Hicks, 9 A.D.3d 318, 781 N.Y.S.2d 318 [1st Dept.2004] ).

Further, even assuming, arguendo, that defendants met their initial burden, we conclude that the affidavit of plaintiff's orthopedic surgeon raised triable issues of fact with respect to each category (see id. at 1077–1078, 978 N.Y.S.2d 546 ). Plaintiffs failed to allege that plaintiff sustained a qualifying injury under the categories of fracture or significant disfigurement in their bill of particulars or supplemental bill of particulars before defendants filed their motion. Those categories were raised for the first time in the affirmation of plaintiffs' attorney responding to defendants' motion and, thus, they were not properly before the motion court (see Christopher V. v. James A. Leasing, Inc., 115 A.D.3d 462, 462, 982 N.Y.S.2d 32 ; Robinson v. Schiavoni, 249 A.D.2d 991, 992, 672 N.Y.S.2d 560 ), and they are not properly before this Court on appeal (see Melino v. Lauster, 195 A.D.2d 653, 656, 599 N.Y.S.2d 713, affd. 82 N.Y.2d 828, 605 N.Y.S.2d 4, 625 N.E.2d 589 ; Mrozinski v. St. John, 304 A.D.2d 950, 951, 757 N.Y.S.2d 158 ).Finally, we agree with defendants that the court erred in granting plaintiffs' cross motion to compel production of the recorded statement of a nonparty witness to defendants' liability insurer, and we therefore modify the order accordingly. That statement, prepared in anticipation of litigation, was conditionally privileged (see CPLR 3101[d] [2] ; Johnson v. Murphy, 121 A.D.3d 1589, 1590, 994 N.Y.S.2d 494 ), and the record does not support plaintiffs' contention that the statement was used to refresh the recollection of the nonparty witness at his deposition, thereby waiving the privilege (see Hannold v. First Baptist Church, 254 A.D.2d 746, 747, 677 N.Y.S.2d 859 ).

The radiologist had recently reviewed the post-accident left-wrist MRI and averred that it showed a nondisplaced fracture of the scaphoid. However, it was error for the court to consider this new serious injury claim, since plaintiff did not plead a fracture injury in the bill of particulars (see Christopher V. v James A. Leasing, Inc., 115 AD3d 462 [1st Dept 2014]; Marte v New York City Tr. Auth., 59 AD3d 398 [2d Dept 2009]).

Here, plaintiff impermissibly raises for the first time in opposition to defendants' motion for summary judgment a new serious injury claim. Indeed, plaintiff never pleaded that she sustained a serious injury under the significant limitation category of NYIL § 5102(d) in her complaint or bills of particulars (see, Def. Exh. A, B; Bacalan v St. Vincents Cath. Med. Centers of New York, 179 A.D.3d 989, 992 [2d Dept 2020]; Anonymous v Gleason, 175 A.D.3d 614, 617 [2d Dept 2019]; Christopher V. ex rel, Wanda R. v James A. Leasing, Inc., 115 A.D.3d 462 [1st Dept 2014]). Accordingly, the branch of defendants' motion for summary judgment dismissing plaintiff's claim under the significant limitation category of NYIL § 5102(d) is granted.