In opposition, plaintiff failed to raise an issue of fact since he submitted no properly affirmed medical reports, but only certified medical records, which may be considered only for limited purposes, such as showing that plaintiff sought treatment after the accident (see Gomez v Davis, 146 A.D.3d 456 [1st Dept 2017]). The records did not become admissible simply because defendants' experts reviewed them, because the defense experts did not rely on them (see Cortez v Bray, 192 A.D.3d 451, 451 [1st Dept 2021]; Walker v Whitney, 132 A.D.3d 478, 478 [1st Dept 2015]; Malupa v Oppong, 106 A.D.3d 538, 539 [1st Dept 2013]). Although defendants' orthopedist relied on plaintiff's emergency room records in support of his opinion, those records, if considered, do not support plaintiff's claim of serious injury.
In opposition, plaintiff failed to raise an issue of fact since he submitted no properly affirmed medical reports, but only certified medical records, which may be considered only for limited purposes, such as showing that plaintiff sought treatment after the accident (seeGomez v. Davis, 146 A.D.3d 456, 45 N.Y.S.3d 399 [1st Dept. 2017] ). The records did not become admissible simply because defendants’ experts reviewed them, because the defense experts did not rely on them (seeCortez v. Bray, 192 A.D.3d 451, 451, 139 N.Y.S.3d 828 [1st Dept. 2021] ; Walker v. Whitney, 132 A.D.3d 478, 478, 18 N.Y.S.3d 27 [1st Dept. 2015] ; Malupa v. Oppong, 106 A.D.3d 538, 539, 966 N.Y.S.2d 9 [1st Dept. 2013] ). Although defendants’ orthopedist relied on plaintiff's emergency room records in support of his opinion, those records, if considered, do not support plaintiff's claim of serious injury.
The defendant must submit medical evidence such as "affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiffs claim" (Spencer v Golden Eagle, Inc., 82 A.D.3d 589. 590 [1st Dept 2011] [internal quotation marks and citation omitted]). In cases where there is proof of a claimed injury, the defendant may also meet his burden by showing that there are factors other than the accident, like preexisting conditions, that may have caused the injury (Farrington v Go On Time Car Serv., 76 A.D.3d 818. 81 8 [1st Dept 2010], citing Pommellsv Perez, 4 N.Y.3d 566, 572 [2005]). Once the defendant meets their burden, the burden shifts to the plaintiff to raise a triable issue of fact through admissible medical proof (see Cortez v Bray, 192 A.D.3d 451, 451 [1st Dept 2021]). The plaintiff must show proof of contemporaneous treatment, quantitative or qualitative, showing that the plaintiffs injuries were causally related to the accident and a recent examination showing the permanency of the injuries (Perl v Meher, 18 N.Y.3d 208, 217-218 [2011]).
When seeking summary judgment pursuant to Insurance Law §5102(d) the moving defendant must conclusively establish that the plaintiff did not suffer any of the enumerated "serious injuries" set forth in that statute. See Cortez v. Bray, 192 A.D.3d 451 (1st Dept. 2021). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving party to raise a material issue of fact sufficient to warrant a trial.
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]).
If this threshold burden is met, the plaintiff must bring forth 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., 98 N.Y.2d 345 [2002]; Cortez vBray, 192 A.D.3d 451 [1st Dept 2021]). When a "serious injury" claim is raised under Insurance Law 5102 (d), it can be substantiated by a medical expert's assigned numeric percentage of the loss of range of motion showing the extent or degree of the plaintiffs physical limitation.
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 (see Antepara v Garcia, 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, 98 N.Y.2d at 350-352; see Cortez v Bray, 192 A.D.3d 451, 451 [1st Dept 2021]). Specifically, a plaintiff must show proof of: (1) contemporaneous treatment - quantitative or qualitative - establishing that the plaintiff's injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (see Perl v Meher, 18 N.Y.3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiff's symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]).
When moving pursuant to Insurance Law §5102(d), the moving party must conclusively establish that the Plaintiff did not suffer any of the enumerated "serious injuries" set forth in that statute. See Cortezv. Bray, 192 A.D.3d 451 (1st Dept. 2021). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving to raise a material issue of fact.
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 (seeAntepara v Garcia , 194 AD3d 513, 513 [1st Dept 2021] ; Cohen v Bayer , 167 AD3d 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 , 98 NY2d at 350-352 ; seeCortez v Bray , 192 AD3d 451, 451 [1st Dept 2021] ). Specifically, a plaintiff must show proof of (1) contemporaneous treatment — quantitative or qualitative — establishing that the plaintiff's injuries were causally related to the accident; and (2) a recent examination establishing the permanency of the injuries (seePerl v Meher , 18 NY3d 208, 217-218 [2011] [no requirement for contemporaneous quantitative measurements, treating doctor may observe and record plaintiff's symptoms in qualitative terms, and later do more specific quantitative measurements in anticipation of litigation]).
In opposition, plaintiff failed to raise an issue of fact since he submitted no properly affirmed medical reports, but only certified medical records, which may be considered only for limited purposes, such as showing that plaintiff sought treatment after the accident (see Gomez v Davis, 146 A.D.3d 456 [1st Dept 2017]). The records did not become admissible simply because defendants' experts reviewed them, because the defense experts did not rely on them (see Cortez v Bray, 192 A.D.3d 451, 451 [1st Dept 2021]; Walker v Whitney, 132 A.D.3d 478, 478 [1st Dept 2015]; Malupa v Oppong, 106 A.D.3d 538, 539 [1st Dept 2013]). Although defendants' orthopedist relied on plaintiff's emergency room records in support of his opinion, those records, if considered, do not support plaintiff's claim of serious injury.