We initially conclude that the foregoing was insufficient to satisfy defendants' prima facie burden as to the 90/180-day category. Although Leitch's report concluded that plaintiff's claimed injuries were either unrelated to the accident or attributable to preexisting conditions, she failed to "adequately address [plaintiff's] condition or limitations within the first 180 days following the accident, which was necessary to foreclose the 90/180-day category of serious injury" (Poole v State of New York, 121 A.D.3d 1224, 1225 [3d Dept 2014] [internal quotation marks and citation omitted]; accord Murgia v Smith, 190 A.D.3d at 1235; see Cohen v Bayer, 167 A.D.3d 1397, 1402 [3d Dept 2018]; compare Sul-Lowe v Hunter, 148 A.D.3d 1326, 1328 [3d Dept 2017]). In the absence of any such proof directed at that category, the claim must survive. However, we do find that Leitch's conclusions were sufficient to meet defendants' prima facie burden that plaintiff had not suffered a serious injury under the permanent loss of use, permanent consequential limitation of use and significant limitation of use categories (see Rosenblum v Irby, 194 A.D.3d 1147, 1149 [3d Dept 2021]; Lavrinovich v Conrad, 180 A.D.3d 1265, 1267-1268 [3d Dept 2020]) and that any claimed injury lacked a causal connection to the accident (see Ni v O'Brien, 179 A.D.3d 1190, 1191 [3d Dept 2020]). Accordingly, the burden shifted to plaintiff to "come forward with objective medical evidence sufficient to create a question of fact regarding the existence of a serious injury caused by the accident" (Cross v Labombard, 127 A.D.3d 1355, 1356 [3d Dept 2015]; see Roulhac v Hermance, 180 A.
As germane here, Insurance Law § 5102(d) defines "serious injury" as an injury that results in a "permanent consequential limitation of use of a body organ or member," in the "significant limitation of use of a body function or system" or is "a medically determined injury or impairment of a nonpermanent nature which prevents an 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." Contrary to the assertion of Supreme Court, defendants, as the proponents of the underlying motion for summary judgment, "bore the initial burden of establishing, through competent medical evidence, that plaintiff did not sustain a serious injury caused by the accident" ( Cohen v. Bayer, 167 A.D.3d 1397, 1398, 91 N.Y.S.3d 300 [2018] ; seeClark v. Basco, 83 A.D.3d 1136, 1137, 921 N.Y.S.2d 345 [2011] ). In support of their motion, defendants submitted the parties' deposition transcripts, plaintiff's medical reports and an independent medical examiner report from orthopedic surgeon Robert C. Hendler.
In motion sequences 002 and 003, respectively, defendant and third-party' defendants (herein referred to as "movants") move for summary judgment dismissing the complaint on the ground that plaintiff did not suffer a serious injury. Movant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (see AnteparavGarcia, 194 A.D.3d 513, 513 [1st Dept 2021]; Cohen v Bayer, 167 A.D.3d 1397, 1398 [3d Dept 2018]). If this threshold burden is met, the plaintiff must come forward with objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury (Toure v Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 350-352 [2002]; see Cortez v Bray, 192 A.D.3d 451, 451 [1st Dept 2021]).
Under Insurance Law § 5102(d), the term "serious injury" includes a "personal injury which results in" a "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 [90] days during the [180] days immediately following the occurrence of the injury or impairment." To establish entitlement to summary judgment dismissing the complaint under Insurance Law § 5102(d), the defendant bears "the initial burden of establishing, through competent medical evidence, that [the] plaintiff did not sustain a serious injury caused by the accident" ( Cohen v. Bayer, 167 A.D.3d 1397, 1398, 91 N.Y.S.3d 300 [2018] [emphasis added]; seeAltman v. Shaw, 184 A.D.3d 995, 997, 126 N.Y.S.3d 526 [2020] ). The defendant "may meet this burden by establishing that [the] plaintiff had a ‘documented history of extensive preexisting conditions and injuries that have produced the same types of symptoms that [the] plaintiff now attributes to the subject accident’ " ( Altman v. Shaw, 184 A.D.3d at 997, 126 N.Y.S.3d 526, quoting Vanalstyne v. Gordon, 180 A.D.3d 1140, 1142, 118 N.Y.S.3d 788 [2020] ).
Based on the foregoing, we conclude that defendant did not meet her burden as to the 90/180–day category. Particularly, although Barbano opined that Murgia sustained cervical spine sprains and a head injury without concussion and that his ongoing symptoms are not related to the accident, he "did not adequately address [Murgia's] condition or limitations within the first 180 days following the accident, which was necessary to foreclose the 90/180–day category of serious injury" ( Poole v. State of New York, 121 A.D.3d 1224, 1225, 995 N.Y.S.2d 751 [2014] [internal quotation marks and citations omitted]; seeCohen v. Bayer, 167 A.D.3d 1397, 1402, 91 N.Y.S.3d 300 [2018] ). However, as to these injuries under the permanent consequential limitation and significant limitation of use categories, defendant's submissions, particularly Barbano's opinion that the worsening of Murgia's symptoms were not causally related to the accident but rather a result of symptom amplification and that the diagnoses made by Murgia's physicians were made based upon subjective complaints, were sufficient to meet defendant's burden.
"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" ( Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105 [1995] [citations omitted]; accordToure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ; seeVanalstyne v. Gordon, 180 A.D.3d 1140, 1141, 118 N.Y.S.3d 788 [2020] ). On a motion for summary judgment, the defendant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (seeCohen v. Bayer, 167 A.D.3d 1397, 1398, 91 N.Y.S.3d 300 [2018] ; Thomas v. McMaster, 165 A.D.3d 1511, 1512, 85 N.Y.S.3d 629 [2018] ). If this threshold burden is met, the plaintiff must come forward with "objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury" ( Howard v. Espinosa, 70 A.D.3d 1091, 1092, 898 N.Y.S.2d 267 [2010] [internal quotation marks and citation omitted]; seeNi v. O'Brien, 179 A.D.3d 1190, 1191, 116 N.Y.S.3d 434 [2020] ).
"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" ( Dufel v. Green, 84 N.Y.2d 795, 798, 622 N.Y.S.2d 900, 647 N.E.2d 105 [1995] [citations omitted]; accord Toure v. Avis Rent A Car Sys., Inc., 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865, 774 N.E.2d 1197 [2002] ; seeVanalstyne v. Gordon, 180 A.D.3d 1140, 1141, 118 N.Y.S.3d 788 [2020] ). On a motion for summary judgment, the defendant bears the initial burden of establishing, through competent medical evidence, that the plaintiff did not sustain a serious injury as a result of the subject accident (seeCohen v. Bayer, 167 A.D.3d 1397, 1398, 91 N.Y.S.3d 300 [2018] ; Thomas v. McMaster, 165 A.D.3d 1511, 1512, 85 N.Y.S.3d 629 [2018] ). If this threshold burden is met, the plaintiff must come forward with "objective medical evidence sufficient to raise a triable issue of fact regarding the existence of a serious injury" ( Howard v. Espinosa, 70 A.D.3d 1091, 1092, 898 N.Y.S.2d 267 [2010] [internal quotation marks and citation omitted]; seeNi v. O'Brien, 179 A.D.3d 1190, 1191, 116 N.Y.S.3d 434 [2020] ).
With respect to plaintiff's alleged cervical spine injury, we conclude that defendant met his initial burden on the motion "by submitting evidence that plaintiff sustained only a temporary cervical strain, rather than any significant injury to h[er] nervous system or spine, as a result of the accident" ( Williams v. Jones , 139 A.D.3d 1346, 1347, 31 N.Y.S.3d 348 [4th Dept. 2016] ; seeCook v. Peterson , 137 A.D.3d 1594, 1596, 28 N.Y.S.3d 501 [4th Dept. 2016] ). With respect to plaintiff's alleged head injury, we conclude that defendant met his initial burden by submitting the affirmed report of an expert physician who examined plaintiff on defendant's behalf, wherein the physician opined that plaintiff did not sustain a concussion in the accident or have postconcussion syndrome (seeCohen v. Bayer , 167 A.D.3d 1397, 1401–1402, 91 N.Y.S.3d 300 [3d Dept. 2018] ; Flanders v. National Grange Mut. Ins. Co. , 124 A.D.3d 1035, 1035–1036, 1 N.Y.S.3d 542 [3d Dept. 2015] ; Smith v. Reeves , 96 A.D.3d 1550, 1551, 946 N.Y.S.2d 750 [4th Dept. 2012] ). Although plaintiff correctly asserts that defendant's expert relied on unsworn medical records and reports, the expert properly relied on medical records and reports prepared by plaintiff's treating physicians in rendering his opinion (see generallyFranchini v. Palmieri , 1 N.Y.3d 536, 537, 775 N.Y.S.2d 232, 807 N.E.2d 282 [2003] ; Meely v. 4 G's Truck Renting Co., Inc. , 16 A.D.3d 26, 29–30, 789 N.Y.S.2d 277 [2d Dept. 2005] ) and, even though those records and " ‘reports were unsworn, the ... medical opinion[ ] relying on ... [them is] sworn and thus competent evidence’ " ( Harris v. Carella , 42 A.D.3d 915, 916, 839 N.Y.S.2d 886 [4th Dept. 2007], quoting Brown v. Dunlap , 4 N.Y.3d 566, 577 n 5, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; see generallyCook , 137 A.D.3d at 1597, 28 N.Y.S.3d
We turn first to defendants' claim that Supreme Court erred in denying their motion for summary judgment as to Lavrinovich under the 90/180–day category. "As proponents of the motion for summary judgment, defendants bore the initial burden of establishing, through competent medical evidence, that plaintiff did not sustain a serious injury caused by the accident" ( Cohen v. Bayer, 167 A.D.3d 1397, 1398, 91 N.Y.S.3d 300 [2018] [citations omitted] ). In support of their motion, defendants proffered an independent medical examination (hereinafter IME) conducted by John Cambareri, as well as the verified bill of particulars and Lavrinovich's deposition testimony.
Seigel ultimately opined that, as a result of the August 2012 accident, plaintiff sustained a "[c]ervical sprain/strain, superimposed on pre-existing degenerative changes." Based on the foregoing, we agree with Supreme Court that the objective findings in Seigel's report, his attribution of the cervical spine injury to the August 2012 accident, and the indicated diminished range of motion in plaintiff's cervical spine, actually serve to support plaintiff's claim of a serious injury such that defendants' were not entitled to summary judgment dismissing plaintiff's claim of serious injury to his cervical spine (seePommells v. Perez , 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ; Cohen v. Bayer, 167 A.D.3d 1397, 1400–1401, 91 N.Y.S.3d 300 [2018] ; Moat v. Kizale, 149 A.D.3d at 1315, 52 N.Y.S.3d 554 ; Durham v. New York E. Travel, 2 A.D.3d 1113, 1114–1115, 769 N.Y.S.2d 324 [2003] ). Although defendants' failure to meet their burden would normally end further inquiry, Supreme Court nevertheless searched the record and granted summary judgment in plaintiff's favor on the threshold issue of serious injury to plaintiff's cervical spine (see CPLR 3212[b] ; Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996] ). "In order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted ... must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing the plaintiff's present limitations to the normal function, purpose and use of the affected body organ, member, function or system" ( Altieri v. Liccardi , 163 A.D.3d 1254, 1255, 80 N.Y.S.3d 689 [2018] [internal quotation marks