New York Personal Injury Lawyer Blog

The plaintiff commenced this personal injury action against the driver and owner of a New York City taxi, involved, along with the plaintiff, in a motor vehicle accident at the traffic light on the street. The plaintiff alleges that he was stopped at the light when the driver rear-ended his vehicle. The driver’s whereabouts throughout this proceeding have been unknown, and the owner was held vicariously liable for driver’s negligence in the court's earlier decision.

A source said that he defendants argue that the plaintiff has failed to meet the statutory requirements of a serious injury under Insurance Law, which defines serious injury as: A personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. They present affirmed medical reports from two physicians in support of this argument. The first report references the plaintiff's repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. The second affirmed medical report, was a radiology study of the plaintiff's CAT scans submitted to the Hospital which shows that no evidence of acute or recent injury, rather a depiction of age-related chronic degeneration of the spine.

The plaintiff argues that the unsworn and sworn medical reports he has submitted in opposition to the defendants' renewed summary judgment cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of excerpts of correspondence from the Social Security Administration (SSA), the plaintiff further notes that the SSA has determined that he is disabled.

In this injury case, the court decided in this manner:

Firstly, the plaintiff erroneously invokes the res judicata doctrine which precludes parties from litigating a previously decided claim and is based on judicial efficiency. "Res judicata, or claim preclusion, is invoked to prevent a party, or one who is in privity with the party, from re-litigating a previously litigated action. In other words, res judicata will only apply if there has been a final judgment on the merits" Here, a final judgment on the merits only exists regarding the defendants' liability to the plaintiff; the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) remains unresolved.
This court has made no final determination whether the plaintiff sustained a serious injury under Insurance Law § 5102 (d). The prior ruling simply denied the defendants' summary judgment cross motion on this issue without prejudice pending discovery of the plaintiff's medical records and granted the defendants leave to renew their cross motion after the plaintiff obtained the necessary documents to show proof of his serious injury. The plaintiff mistakenly interprets this prior ruling as a final adjudication of the serious injury issue, rather than merely an extension of time to complete his own court-mandated discovery. Hence, the plaintiff's objections to placing the renewed summary judgment cross motion on the calendar and his contention that the defendants were required to file an appeal about the serious injury issue lacks merit.

Secondly, evaluating the cross motion itself involves recognizing that summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should only be employed where no triable issues exist. Granting a summary judgment motion occurs if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law, and the party opposing the summary judgment motion fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact If the plaintiff's injuries fall within the statutory definition of "serious," articulated in Insurance Law § 5102 [d], then the plaintiff may maintain an action pursuant to Insurance Law § 5104 (a), which allows for recovery "for personal injuries arising out of negligence in the case of a serious injury."

Thirdly, the defendants must meet the statutory standard through affirmed reports of medical professionals showing a lack of a serious injury as determined through objective tests. "A defendant who submits admissible proof that a plaintiff seeking damages for personal injuries arising from a motor vehicle accident has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious spine injury within the meaning of Insurance Law § 5102 (d)"

In sum, the court ordered that the defendants' summary judgment cross motion is granted on the issue of serious injury, and the complaint is dismissed for lack of a serious injury sustained in the 2001 accident, the subject of this action. Furthermore, the court ordered that the plaintiff's request to dismiss the defendants' cross motion and for sanctions is denied as academic.

Continue reading "Man is rear ended causing serious spinal injury" »

The complainant man commenced a personal injury action against a driver, the taxi company and the medallion owner of a New York City taxi after a motor vehicle accident at the traffic light in Brooklyn. The complainant alleges that he was stopped at the light when the driver rear-ended his vehicle. The driver’s whereabouts throughout the proceeding have been unknown, and the taxi company was held vicariously liable for the driver's negligence in the court's earlier decision.

The decision also denied the portion of the defendants' summary judgment cross motion, which was based on the complainant's alleged failure to establish a qualifying serious injury, but said denial was without prejudice to renewal upon completion of discovery. The court held, as a matter of equity, that the complainant be given additional time to locate his doctors and obtain affirmations about his medical condition. A renewed cross motion has ensued.
The defendants argue that the complainant has failed to meet the statutory requirements of a serious injury under Insurance Law, which defines serious injury as a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. They present affirmed medical reports from two physicians in support of their argument. First, they submit the affirmed report of the defendants' orthopedic surgeon, regarding the complainant's examination. The report references the complainant's repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. It is noted that the complainant specifically stated that he can't sleep. He has permanent pain in the back and he can't stand for 15 minutes. However, the orthopedic surgeon’s physical exam found that the complainant exhibited a normal range of motion and moved pain free within the normal range. The orthopedic surgeon also found the complainant able to walk normally, rapidly and without limping. He measured both of the complainant's arms, conducted manual muscle testing, and again found each arm normal. Similarly, the orthopedic surgeon measured the circumference of the complainant's legs; conducted manual muscle testing and pin prick simulation, and found normal, symmetrical measurements, movements, and response.

The complainant’s first argues that the defendants improperly filed their renewed cross motion. He cites in this regard the res judicata doctrine, incorrectly identified as the res adjudicata doctrine. In seeking denial of the defendants' cross motion, the complainant claims that the prior determination granting him summary judgment resolved both the liability and serious injury issues presented therein and contends that the defendants needed to pursue any remedy through appeal. The complainant requests denial of the defendants' renewed summary judgment cross motion and seeks sanctions against the defendants' counsel.
The complainant provides only one medical affirmation about the 2001 accident; namely, a report by a New York licensed neurologist, commenting on an August 6, 2007 examination. The license neurologist also references the unauthenticated January 26, 2001 images studied by the defendants' radiologist, and affirms that the complainant has developed tingling and numbness in his right and left arms radiating into his right and left leg as a result of the January 1, 2001 accident. The neurologist finds that the patient's sensory thresholds are all within normal limits, except for a decreased sensation on the outer aspects of the bilateral leg to pin and decreased sensation on the outer aspect of the bilateral arm to pin. The neurologist, unlike the defendants' orthopedist, found the complainant had decreased spinal range of motion. She maintains that the complainant had weakness in the arm and leg muscles and relies on the 2001 images to highlight the presence of a chronic bilateral spine injury secondary to his motor vehicle accident of 2001. The neurologist thus reports permanent restrictions in range of motion of the cervical and lumbar spine region and neurological disability that would require a series of three epidural injections to the neck and systematic physical therapy and pharmacological pain management.

The complainant, though, despite several requests, has failed to provide the court with affirmations from his treating physician at the time of the January 1, 2001 accident or with affirmations from those doctors treating him in the time period between the 2001 accident and his decision to obtain treatment from the neurologist in May, 2007.

The complainant also cites the January 31, 2001 un-affirmed report of a psychologist. He asserts that the report demonstrates that he is suffering both emotionally and cognitively and that the negligence of defendants is the proximate cause of his psychological injury. Next, the complainant refers to an unsworn MRI scan report of his lumbosacral spine performed by a radiologist. The radiologist opines in an unsworn report that the complainant is suffering from various spine injuries including anterolisthesis, disc space narrowing, dessication, and a herniated disc. Additionally, the documents provided in response to the complainant's subpoenas also include a small number of other un-affirmed documents referencing the 2001 accident. These documents are un-affirmed medical records from emergency rooms visits by the complainant apparently for treatment received as a result of his complaints of lower back pain.

In sum, the complainant argues that the unsworn and sworn medical reports he has submitted in opposition to the defendants' renewed summary judgment cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of excerpts of correspondence from the Social Security Administration (SSA), the complainant further notes that the SSA has determined that he is disabled.

The defendants have made their legitimate showing that the complainant did not sustain a serious injury as defined by Insurance Law in the instant motion through their doctors' affirmed reports and affirmations citing objective tests that found a normal range of motion and no disabilities causally related to the 2001 accident.

The burden then shifts to the complainant to present admissible evidence demonstrating a triable factual issue about each alleged injury. In the instant case, the court specifically directed the complainant to meet the required legal burden by supplying physician affirmations outlining his post-accident condition and subsequent treatments. The complainant, though, has failed to provide treating physicians' affirmed statements regarding his injuries resulting from the 2001 accident.

In addition, the affirmation of the neurologist regarding her August 6, 2007 examination of him lacks sufficient supporting range of motion testing. Even proof of a herniated disc, without additional objective medical evidence establishing that the accident resulted in significant physical limitations, is not alone sufficient to establish a serious injury. Further, the neurologist does not state that the permanent restrictions suffered by the complainant are severe enough to reach the threshold required by Insurance Law. The images alone fail to meet the high threshold set by the New York legislature for the complainant to have suffered a legally recognizable serious injury.

The complainant fails to explain the gap in treatment between the 2001 visits to the Brooklyn Hospital and the 2007 visits to the neurologist. To satisfy the statutory burden, the complainant must have suffered permanent injuries that have impaired his daily activities. The cessation of treatment without evidence about the reason behind the gap requires granting summary judgment for the defendants.

Continue reading "Taxi company is held liable for accident and injuries" »

This is a personal injury action in which plaintiff, seeks to recover damages for injuries he sustained as a result of a motor vehicle accident that occurred on December 22, 2009, at the intersection of 23rd Avenue and 97th Street, Queens County, New York. At the time of the incident, the plaintiff was proceeding on 23rd Avenue when the vehicle operated by defendant, pulled out of a parking space and collided with the plaintiff's vehicle while attempting to make a U-turn. The plaintiff claims that as a result of the car accident he sustained injuries to his neck, including a herniated disc at C5-C6, injuries to his right shoulder, lower back and a partial tear of the ACL of the right knee.

A reporter said that, the plaintiff commenced this action by filing a summons and complaint on June 18, 2010. Plaintiff contends that he sustained a serious injury as defined in Insurance Law § 5102(d) in that he sustained a permanent loss of use of a body organ, member function or system; a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; and a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute his 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.

A witness said that, defendants now move for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the plaintiff's complaint on the ground that plaintiff did not suffer a serious injury as defined by Insurance Law § 5102.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court said that, in support of the motion, defendants submit an affirmation from counsel; a copy of the pleadings; the affirmed medical reports of board certified orthopedic surgeon, and neurologist; and a copy of the transcript of the examination before trial of plaintiff.
The orthopedic surgeon retained by the defendants, examined plaintiff on August 11, 2011. Plaintiff presented with pain in the cervical spine, pain in the right shoulder, pain in the lumbar spine and pain in the right knee. The orthopedic surgeon performed quantified and comparative range of motion tests. She found that the plaintiff had no limitations of range of motion in the cervical spine injury, right shoulder, lumbar spine injury and right knee. The doctor states that "based on today's findings, it is my opinion that the claimant has no objective evidence of disability. The claimant may work and perform daily living activities without boundaries or restrictions."

The neurologist, saw the plaintiff in her office for a neurological evaluation she performed quantified and comparative range of motion tests. She found full range of motion in the plaintiff's cervical spine and lumbar spine injury, with a significant limitation in right leg raising due to pain in the right knee. She states that there are no abnormal neurologic findings at all. She states that she cannot comment on the knee but she saw no evidence of any ongoing problems related to the lumbosacral spine.

Defendant's counsel contends that the medical reports of the orthopedic surgeon and the neurologist, as well as the transcript of the plaintiff's examination before trial are sufficient to establish, prima facie, that the plaintiff has not sustained a permanent consequential limitation or use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury or impairment of a nonpermanent nature which prevented the plaintiff from performing substantially all of the material acts which constitute his 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.

In opposition, plaintiff's attorney, submits his own affirmation as well as the medical report of the neurologist of the Med Care Health & Rehabilitation Services, P.C., the radiological report of with respect to the MRI of plaintiff's right knee, the medical report of orthopedic surgeon and the affidavit of plaintiff dated May 16, 2012. The orthopedic surgeon, examined the plaintiff, at that time he found that the plaintiff sustained acute cervical and lumbar trauma and traumatic synovitis of the right knee. He referred the plaintiff for MRI testing and for physiotherapy modalities. The doctor states that as a result of the accident the plaintiff sustained cervical strain/sprain, C5-C6 disc herniation, lumbar sprain/strain and right knee derangement with partial ACL tear.

In his affidavit of May 9, 2012, the plaintiff states that as a result of the accident he injured his neck, back and right knee. He went to physical therapy weekly until March 2011 when he stopped because his insurance would not pay for the treatments and he was financially unable to make the payments himself. He states that following the accident he was confined to his bed and home for three months. He continues to have pain in his right knee, neck, and back.
On a motion for summary judgment, where the issue is whether the plaintiff has sustained a serious injury under the no-fault law, it is defendant's initial obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim. Where defendants' motion for summary judgment properly raises an issue as to whether a serious injury has been sustained, it is incumbent upon the plaintiff to produce evidentiary proof in admissible form in support of his or her allegations. The burden, in other words, shifts to the plaintiff to come forward with sufficient evidence to demonstrate the existence of an issue of fact as to whether he or she suffered a serious injury.
As stated above, the medical report of the defendant's examining neurologist, relied on by the defendant, clearly set forth that upon her examination of the defendant she found significant limitation in the plaintiff's range of motion when conducting the straight leg raising test on the right leg. The neurologist attributed the limitation to pain in the plaintiff's right knee but she failed to test the range of motion of the plaintiff's right knee. The defendant did not annex a copy of the plaintiff's bill of particulars, however, plaintiff's radiologist, when interpreting the MRI studies, observed a torn ACL of the right knee. Thus, as the plaintiff is alleging a right knee injury and complained of pain in the right knee, it was incumbent upon the defendant's doctor to examine the range of motion of the plaintiff's right knee. The neurologist states that she did not review any medical records prior to her examination but was aware that the plaintiff complained of pain to the right knee. She did not attempt to explain the pain in plaintiff's right knee. Therefore, although the doctor found a clear limitation in straight leg raising due to pain in the plaintiff's knee, the extent of the knee problem was not quantified since she did not test the range of motion. As such, her report is insufficient to eliminate all triable issues of fact.

Without such comparative quantification of the range of motion of the right knee or explanation of the limitation found with regard to straight leg raising test, the Court cannot conclude that there were no abnormal findings in her report. Further, the defendant failed to submit evidence to dispute the findings of the plaintiff's radiologist that plaintiff sustained a torn ACL as a result of recent trauma Thus, the defendants failed to objectively demonstrate that plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102 (d).

Therefore, this Court finds that the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), tendering sufficient evidence to demonstrate the absence of any material issues of fact. Since the defendants failed to satisfy their initial burden on their motion, it is not necessary to consider whether the plaintiffs' papers in opposition were sufficient to raise a triable issue of fact.

Continue reading "Car accident in Queens caused spinal injuries" »

The underlying action was commenced by the plaintiffs as a result of a motor vehicle accident, which occurred on November 29th, 2008, at or near the intersection of Page Road and Marlboro Road in Valley Stream, New York. The subject intersection is controlled by stop sign for those vehicles traveling on Marlboro Road.

A Lawyer said that, as recited in the relevant deposition transcript, the Police Officer testified on the day of the accident she was operating police vehicle number 523 and was traveling approximately 30 miles per hour southbound on Marlboro Road responding to an emergency call she received in connection to an unconscious person in need of medical assistance. Upon receipt of this call, the Officer activated the emergency lights, which remained illuminated continuously, as well as the siren, which she operated intermittently "every half second" until the time of the car accident. Upon approaching the subject intersection, the Officer began to slow the police vehicle down when she observed the automobile operated by the plaintiff traveling eastbound of Page Road. After observing the plaintiff's vehicle, the Officer continued to sound the siren and attempted to stop the police cruiser but was unable to do so and collided with the plaintiff. The Officer testified that at the time of impact, the speed of the police cruiser was between "five to ten" miles per hour.

A source said that, the plaintiff claims that as a consequence of the subject accident, she has sustained serious injury as defined in Insurance Law. Plaintiff, while not alleging a claim of serious injury, has asserted a derivative claim for loss of consortium. The applications respectively interposed by the moving parties thereafter ensued and are determined as set forth hereinafter. The Court initially addresses that branch of the defendants' application which seeks an order dismissing the underlying complaint on the basis that the plaintiff has failed to demonstrate the County acted with reckless disregard to the safety of others. In support thereof, counsel argues that at the time of the accident the police cruiser was an authorized vehicle responding to an emergency situation and was operated by the Officer in a non-reckless manner thus warranting the relief herein requested.

A source said that, defendants move pursuant to CPLR §3212, for an order granting summary judgment dismissing the within complaint on the following bases: the plaintiffs have failed to demonstrate that the County acted with reckless disregard, and; that plaintiff has failed to establish she has sustained a serious injury as contemplated by Insurance Law §5102[d].

A Lawyer said that, the plaintiffs oppose this branch of the defendants' application and simultaneously cross move for various forms of relief. In opposing the instant application, plaintiffs' counsel posits that there is material questions of fact as to the relative speeds of the vehicles respectively operated by plaintiff and the Officer, as well as with respect to whether the Officer adequately sounded the siren upon approaching the subject intersection.

The issues in this case are whether plaintiffs have failed to demonstrate that the County acted with reckless disregard and; that plaintiff has failed to establish she has sustained a serious injury as contemplated by Insurance Law.

It is well settled that a motion for summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering admissible proof which is sufficient to warrant the Court to direct judgment in the movant's favor. Such evidence may include deposition transcripts as well as other proof annexed to an attorney's affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve factual issues but rather to determine if any such material issues of fact exist.

Of particular relevance herein, Vehicle and Traffic Law §1104, bestows upon "the driver of an authorized emergency vehicle" a qualified privilege to disregard established traffic rules when responding to an emergency situation. Such privilege extends to permitting an emergency vehicle to "proceed past a steady red signal, flashing red signal or stop sign, but only after slowing down as may be necessary for safe operation". The privilege provided by the statute is expressly limited by VTL§1104[e], which provides "the foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others". The standard of reckless disregard "requires proof that the officer intentionally committed an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow".
The Court has carefully reviewed the record and finds that the submissions proffered by the defendants fail to eliminate material issues of fact as to the speed at which the police vehicle was being operated as it entered the intersection, as well as with respect to how frequently the siren was sounded prior to impact. In the instant matter, and as noted above, the Officer testified she operated the siren intermittently every half second and that she slowed the police vehicle prior to entering the subject intersection. However, said assertions are plainly contradicted by the statements provided to the police by the non-party witnesses copies of which are included in the defendants' motion papers. A review thereof indicates that one witness stated he "saw a marked police car number 523 driving southbound on Marlboro road pass him with its lights on doing about 40-50 mph." He additionally stated that as "the police car approached the intersection at Page road he heard the Police Siren for about a second and then saw a collision." As to the other witness he stated he observed the police vehicle "travelling south bound on Marlboro road going fast" and that "as the police car approached the intersection of Page road he heard the siren for about 1 second and then he saw the police car collide with the plaintiff's vehicle.

Thus, given the foregoing, this Court finds that the defendants have failed to establish their prima facie burden. Accordingly, this Court need not consider the sufficiency of the plaintiffs' opposition papers.

The Court now addresses that branch of the defendants' application which seeks dismissal of the underlying complaint on the basis that plaintiff did not sustain a serious injury.
In support thereof, the defendants provide the following-the affirmed report of independent radiologic reviews authored by the physician in connection to various MRIs and X-rays taken of the plaintiff's cervical, lumbar and thoracic spine injury; an unsworn operative report of the physician, who preformed a pre-accident discectomy at L5-S1, and; an unsworn pre-accident MRI report.

The doctor conducted an orthopedic examination which included range of motion testing as to the plaintiff's neck, which was obtained by way of visual observation. Such testing revealed restrictions as to flexion [45 degrees observed, 60 degrees is normal], extension [5 degrees observed 15 degrees is normal], and lateral bending and rotation [45 degrees observed, 60 degrees is normal]. The doctor opined that the plaintiff "has a diagnosis of underlying and pre-existing osteoarthritis in the neck and back and it is my opinion this may have been exacerbated in this motor vehicle accident".

This branch of the defendants' application is opposed by the plaintiffs' who also cross-move for an order granting summary judgment as to the issue of serious injury. In both opposing the application and in support of the cross-motion, counsel for the plaintiff submits the following medical evidence: the affidavit of the affirmed medical reports from his doctors.
Where, as here, the defendants have interposed a threshold motion seeking dismissal of a personal injury complaint, the movant bears the specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Insurance Law §5102[d]. Upon such a showing, it becomes incumbent upon the plaintiff to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury". Within the scope of the defendants'' burden, the medical experts must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to the plaintiff's range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

Having carefully reviewed the numerous medical reports submitted herein, the Court finds that none of the moving parties herein have demonstrated entitlement to summary judgment. Initially, and with respect to the moving defendants, the Court finds they have failed to demonstrate that the plaintiff did not sustain a "serious injury". Here, in addition to opining that the subject accident may have exacerbated a pre-existing condition' the defendants medical expert clearly observed limitations in the plaintiff's neck as to flexion extension and lateral rotation.

Based upon the foregoing, the court held that the branch of the defendants' application seeking summary judgment dismissing the within complaint on the basis that the plaintiff failed to sustain a serious injury is denied and the plaintiffs' cross-motion for an order granting summary judgment in their favor as to the issue of serious injury is denied.

Continue reading "Police car involved in accident in Valley Stream" »

A Lawyer said that, in an action to recover damages for personal injuries, the defendant Corporation appeals from an order of the Supreme Court, Queens County, dated February 9, 2007, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

The issue in this case is whether plaintiff sustained serious injury as a result of the accident as defined under the Insurance Law.

The Court in deciding the case defined the term "Serious Injury" Insurance Law §5102(d) means a personal injury which result in 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 constitutes 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. Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court. It is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim. If the defendant’s motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury.

The defendant Corporation met its prima facie burden by establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The Court said that, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's medical submissions were insufficient to raise a triable issue of fact since none were based on a recent examination. Defendant Corporation’s examining radiologist that the condition of the plaintiff's cervical spine injury resulted from pre-existing degeneration and was not caused by the subject accident. Defendant Corporation’s examining radiologist also noted that the magnetic resonance imaging studies of the plaintiff's lumbar spine evinced that he had a transitional vertebra, which was congenital, and predisposed him to abnormal movements and premature degenerative disc disease. The failure of the plaintiff's experts to address these findings rendered speculative any conclusions they made that the plaintiff's spinal injury restrictions were causally related to the subject accident. The plaintiff also failed to proffer competent medical evidence that he sustained a medically-determined injury of a nonpermanent nature which prevented him, for 90 of the 180 days following the subject accident, from performing his usual and customary activities.

Accordingly, the Court held that the order is reversed, on the law, with costs, and the motion of the defendant Corporation for summary judgment dismissing the complaint insofar as asserted against it is granted.

Continue reading "A Personal Injury Lawyer said that, in an action to recover damages for personal injuries," »

In this personal injury action, a Injury Lawyer said that, the moving defendants assert that the plaintiff has not sustained a "serious injury" as a result of the accident. Defendant filed a motion for summary judgment dismissing the complaint. A Lawyer said that, the examination of his back showed that the plaintiff had "mild limited range of motion of the lumbar spine to 70 degrees flexion (normal 90 degrees), 30 degrees right and left rotation (normal 40 degrees) with some pain on extremes of motion" all other measurements were normal. The plaintiff was found to have had a full range of motion of his shoulders with the physician noting”mild left anterolateral shoulder tenderness." The doctor’s assessment was that the plaintiff had left shoulder internal derangement, status post arthoscopy. The doctor writes as part of his summary "However, the operative photos of the left shoulder show findings which are likely degenerative and may have been exacerbated in the accident. There are no objective physical findings of any significant pathology in the cervical spine, lumbar spine, or left shoulder. The claimant has mild limited motion in the lumbar spine actively due to pain." The doctor notes that in his review of the operative photos of the left shoulder that he saw a fraying of the anterior and superior labrum which is likely degenerative.

A doctor said that, the defendant submits the affirmation of a Board Certified Radiologist, dated February 25, 2010. The radiologist examined the MRI of the plaintiff's cervical spine injury taken July 26, 2008. The radiologist found the MRI to be unremarkable other than a "mild diffuse and concentric bulge on the intervertebral disc" at the C5-6 level. It was the radiologist’s opinion that this disc desiccation and degenerative spondylosis at the C5-6 level was degenerative and preceded the date of the accident. Dr. Winn also examined the MRI of the plaintiff's lumbar spine taken July 14, 2008. This MRI was generally unremarkable, however, he noted that the "intervertebral discs at L3-4 and L5-S1 are mildly diminished in height and demonstrate some loss of the normal hyperintense signal on the T2-weighted images, consistent with disc desiccation." He also noted that at "L5-S1, there is a mild diffuse and concentric bulge of the intervertebral disc, without evidence of focal herniation." The radiologist stated "I see mild endplate osteophtye formation, consistent with degenerative spondylosis from L1-2 through L5-S1. There is disc desiccation and disc space narrowing at L3-4 and L5-S1, with mild diffuse and concentric bulging of the intervertebral disc at L5-S1. These findings all represent typical manifestations of degenerative disc disease" and would have been present before the accident. The radiologist did disagree with the original report which described disc bulging at L3-4 and herniation at L4-5 as well as the described limatentum flavum hypertrophy and spinal stenosis at both levels. He also disagreed with the initial finding that there was a central disc herniation at L5-S1 which he felt did not demonstrate any focal disc herniation. He writes "I also see absolutely no evidence of the described spinal stenosis or narrowing of the left neural foramen at L5-S1." He further notes that the initial report should have mentioned the mild degenerative spondylosis throughout the lumbar spine was indicative of “long-standing preexisting degenerative” changes in the plaintiff's lumbar spine injury.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court said that, in order to maintain an action for personal injury in an automobile case a plaintiff must establish, after the defendant has properly demonstrated that it is an issue, that the plaintiff has sustained a "serious injury" which is defined as follows: "Serious Injury" Insurance Law §5102(d) Serious injury means a personal injury which result in 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 constitutes 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.

Whether a plaintiff has sustained a serious injury is initially a question of law for the Court. Initially it is defendant's obligation to demonstrate that the plaintiff has not sustained a "serious injury" by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff's claim. If the defendant’s motion raises the issue as to whether the plaintiff has sustained a "serious injury" the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a "serious injury" in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury.

Insurance Law 5102 is the legislative attempt to "weed out frivolous claims and limit recovery to serious injuries". Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a "serious injury", however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.

The defendant relies on the affirmation of a doctor dated November 10, 2009. The plaintiff allegedly had prior arthroscopy of his right knee and ulnar nerve laceration which was treated in 1990. The examination of his neck was unremarkable. Here the defendant has come forward with sufficient evidence to support her claim that the plaintiff has not sustained a "serious injury".

To establish that the plaintiff has suffered a permanent or consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system, the plaintiff must demonstrate more than "a mild, minor or slight limitation of use" and is required to provide objective medical evidence of the extent or degree of limitation and its duration. Resolution of the issue of whether "serious injury" has been sustained 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. Upon examination of the papers and exhibits submitted this Court finds that the plaintiff has raised triable factual issue as to whether the plaintiff has "permanent consequential" and "significant limitation" categories. Where a plaintiff alleges soft-tissue injury to the spine, range-of-motion testing is used to determine whether the plaintiff has sustained a "serious injury". In order to demonstrate that the plaintiff has not sustained a serious injury the defendant must initially demonstrate that the plaintiff's range-of-motion is "normal".

The question presented as to the difference between the conflicting measurements of plaintiff's ability to move creates an issue of fact for the jury. When the findings reported by one physician are assessed by application of the standard of "normal" stated by the other, the reports present "contradictory proof". The use of the word "normal" should not differ between physicians. Generally, an unexplained cessation of medical treatment may be fatal to the plaintiff's claim of a significant or permanent consequential limitation. A diagnosis of permanency having been sustained by the plaintiff obviates the need for further treatment and, therefore, there is no "gap" in treatment. Also, a finding by the treating physician that continued treatment would be merely palliative can be considered a sufficient explanation for cessation of treatment.

The plaintiff has failed to demonstrate that he has a "medically determined" spinal injury or impairment which has prevented his from performing all of his usual and customary daily activities for at least 90 of the first 180 days following the accident. With regard to the 90/180 rule, the defendant's medical expert must relate specifically to the 90/180 claim made by the plaintiff before dismissal is appropriate. However, upon the defendant's properly raising this issue the plaintiff must submit competent medical evidence that the spinal injuries sustained rendered him unable to perform substantially all of his daily activities for not less than 90 days of the first 180 days subsequent to the subject accident.

Regarding the "permanent loss of use" of a body organ, member or system the plaintiff must demonstrate a total and complete disability which will continue without recovery or with intermittent disability for the duration of the plaintiff's life. The finding of "Permanency" is established by submission of a recent examination. The mere existence of a herniated disc even a tear in a tendon is not evidence of serious physical injury without other objective evidence. Merely referring to the plaintiff's subjective quality of the plaintiff's pain does not fall within the objective definition of serious physical injury.

Regarding "permanent limitation" of a body organ, member or system the plaintiff must demonstrate that he has sustained such permanent limitation. The word "permanent" is by itself insufficient, and it can be sustained only with proof that the limitation is not "minor mild, or slight" but rather "consequential". Once the question has been raised, in order for the plaintiff to sustain proof of permanency, he must demonstrate the existence of such injury through objective medical tests which demonstrate the duration and extent of the spinal injuries alleged. The "significant limitation of use of a body function or system" requires proof of the significance of the limitation, as well as its duration. A physician may not base his conclusion upon unsworn MRI reports. The unaffirmed medical reports of a physician are without any probative value and therefore may not be considered. The report must indicate that its contents are made under penalty of perjury in order to be admissible.

Accordingly, the court held that the defendant's motion to dismiss is granted and the plaintiff's motion is dismissed.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County, dated August 20, 2008, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

The Court said that the defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. In opposition, the plaintiff raised a triable issue of fact as to whether he sustained a serious spinal injury to his cervical and/or lumbar regions of his spine under the permanent consequential limitation and/or significant limitation of use categories of Insurance Law § 5102 (d) as a result of the subject accident.

The plaintiff raised a triable issue of fact based on the submissions of the plaintiff's treating physicians, established in his initial examination report dated May 9, 2003, that the plaintiff had significant limitations in the ranges of motion of the cervical and lumbar regions of his spine injury. These contemporaneous significant limitations were deemed by the physician to have been caused by the subject accident. Shortly after the accident, the plaintiff underwent magnetic resonance imaging (hereinafter MRI) scans of the cervical and lumbar regions of his spine, which were read by the doctor, his examining radiologist. The cervical MRI showed posterior disc herniations at C3-4 and C4-5 with impingement on the anterior aspect of the spinal canal and the left intervertebral foramen at C3-4. The lumbar MRI showed posterior disc herniations at L4-5 and L5-S1 with impingement on the anterior aspect of the spinal canal, the neural foramina bilaterally at L4-5, and the nerve roots bilaterally at L5-S1. In his report of his recent examination of the plaintiff and his personal review of the MRI films, the plaintiff's examining neurologist, noted his agreement with the other physician’s interpretation of the plaintiff's MRIs, and opined that the plaintiff had significant limitations in the range of motion of the cervical and lumbar regions of his spine, and that these limitations were permanent and causally related to the subject accident. The neurologist further opined that the plaintiff sustained permanent consequential limitations of use of the cervical and lumbar regions of his spine injury, and that the limitations noted were significant.

While it is true that the defendant's radiologist opined that the MRI scans taken of the cervical and lumbar regions of the plaintiff's spine revealed only bulging discs which were degenerative in nature, the neurologist who reviewed the same films, observed herniated discs, which he deemed to be caused by the subject accident. Thus, the conflicting medical opinions regarding the nature and etiology of the spinal injuries to the cervical and lumbar regions of the plaintiff's spine were sufficient to raise a triable issue of fact.

Contrary to the defendant's assertions, the plaintiff adequately explained the lengthy gap in his treatment. The plaintiff admitted in his affidavit that he treated for only seven months after the subject accident, but stated that he stopped because his no-fault benefits terminated and he could not thereafter afford to pay for further treatments out of his own pocket. Moreover, the physician stated in his affirmation that the plaintiff stopped treating, inter alia, because he had reached his maximum medical improvement and any further treatment would essentially is palliative in nature.

Accordingly, the Court held that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

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Company-A was the owner of a certain property in Queens County, which it bought to develop into a 12-story commercial building, with retail spaces, office condominiums, entertainment complexes and parking. The general contractor, Company-B, retained Company-C to demolish an existing building on the property. Having no demolition experience, Company-C subcontracted the demolition job to Company-D. Both plaintiff-one and plaintiff-two worked for Company D.

On 4 February 2005, a construction accident occurred. A portion of the third floor gave way when both plaintiffs were demolishing it. Plaintiff-one suffered from a spinal injury, specifically, multiple fractures to his vertebrae, requiring spinal fusion, and resulting in paraplegia, and plaintiff-two sustained bilateral wrist fractures, necessitating surgery to his right hand.

Consequently, plaintiffs filed a personal injury action against Company-A, Company-B, Company-C and Company-D for the injuries they sustained, which included a spinal injury.
Apparently, Company-D, as is true with many companies in the construction industry, was not concerned with plaintiffs' alien status, complying with the federal Immigration Reform and Control Act of 1986, or IRS regulations. According to both plaintiffs, in their deposition testimony, they did not have to fill out an application to work for Prestige, or show any type of identification, and they were not asked for a Social Security number, were always paid in cash, and were never given W-2 forms.

Moreover, not only did Company-D not comply with hiring regulations. They were also not very concerned with the safety of its employees. According to the owner of Company-C, Company-D did not have a safety director at the site since they fired their safety director sometime before the subject construction accident. Plaintiffs were initially not provided with hard hats when they began their employment, nor were they provided with harnesses on the date of the subject construction accident even though plaintiff-one was using a jackhammer on what was left of the concrete floor while plaintiff-two used wire cutters. The remaining portion of the floor was approximately eight feet by four feet and was in between beams that supported the floor. The concrete slab was standing as an island, supported by beams on four sides. When plaintiffs reached the slab by walking 10 feet on exposed beams, three sides of the slab had already been cut and separated from the supporting beams. Thus, when the slab suddenly tipped, plaintiffs fell to the floor below without any protection whatsoever.

Now that plaintiffs were injured and sought lost wages, the owner and general contractor were suddenly concerned with plaintiffs' alien status and income tax returns.

Here, although a worker's alien status may be a legitimate factor in litigating a lost wage claim, allowing defendants to inquire of plaintiffs' status would contravene the legislative policies behind the IRCA. It would also unnecessarily intimidate plaintiffs from pursuing a legitimate claim. Thus, defendants' motion was denied.

It is true that employers often hire undocumented workers to keep cost down. This practice is inconsistent with the immigration policies, thus Congress enacted the IRCA with the expressly stated aim of curbing it. As the Court of Appeals noted in the case of Balbuena v IDR Realty LLC, both Congress and the President expressed the view that the principal means of closing the back door, or curtailing future illegal immigration, was through employer sanctions that were intended to remove the incentive for illegal immigration by eliminating the job opportunities which draw illegal aliens into the country. To attain this goal, the most important component of the IRCA scheme was the creation of a new employment verification system designed to deter the employment of aliens who are not lawfully present in the United States and those who are lawfully present, but not authorized to work. Under this system, aliens legally present and approved to work in the United States are issued formal documentation of their eligibility status by federal immigration authorities, usually in the form of a green card, a registration number or some other document issued by the Bureau of Citizenship and Immigration Services. Before hiring an alien, an employer is required to verify the prospective worker's identity and work eligibility by examining the government-issued documentation. If the required documentation is not presented, the alien cannot be hired. An employer who knowingly violates the employment verification requirements, or who unknowingly hires an illegal alien but subsequently learns that an alien is not authorized to work and does not immediately terminate the employment relationship, is subject to civil or criminal prosecution and penalties. In addition to the provisions relating to the responsibilities of employers, IRCA also declares that it is a crime for an alien to provide a potential employer with documents falsely acknowledging receipt of governmental approval of the alien's eligibility for employment. Similar to the [Immigration and Naturalization Act], however, IRCA does not penalize an alien for attaining employment without having proper work authorization, unless the alien engages in fraud, such as presenting false documentation to secure the employment. In order to preserve the national uniformity of this verification system and the sanctions imposed for violations, Congress expressly provided that IRCA would preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
In other words, as provided for under IRCA, the onus is on the employer to make sure that it is hiring a person authorized to work and its failure to do so will expose it to civil or criminal prosecution and penalties. Only in situations where the worker uses false documents to obtain employment will he be subject to criminal penalties. Notwithstanding an employer's exposure to certain risks under IRCA, in certain industries, such as in the demolition segment of the construction industry, that risk is insufficiently high to deter the hiring of undocumented immigrants. Thus, certain segments of the construction industry are replete with undocumented aliens.

In the instant case, given the status of the industry, it seems disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out. Company-A could have instructed its general contractor not to subcontract with outfits who did not comply with federal regulations, and Company-B could have insisted that all its subcontractors comply with federal regulations as well.

Pursuant to the case of Balbuena v IDR Realty LLC, Company-A and Company-B moved for an order compelling further depositions of plaintiffs with regard to immigration status and income tax returns.

In the case of Balbuena, the Court of Appeals addressed whether an undocumented alien injured at a work site as a result of state Labor Law violations is precluded from recovering lost wages due to immigration status. A split in authority had developed between the Appellate Division, First and Second Departments, on this issue given the Departments' interpretation of the case of Hoffman Plastic Compounds, Inc. v NLRB which was decided sometime in 2002. There, the court held that an undocumented alien who provided fraudulent work papers in violation of federal law could not be awarded back pay for work not performed as a result of an employer's unfair labor practice. After an exhaustive analysis of federal law, New York State Labor Law, and preemption principles, the Court of Appeals held in the case of Balbuena that IRCA does not bar maintenance of a claim for lost wages by an undocumented alien in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment. In addressing mitigation concerns, the Court first noted that, where a plaintiff has suffered serious injuries which prevent him from working, there is no need for plaintiff to mitigate and, therefore, his immigration status is irrelevant. It went on to state that in any event, any conflict with IRCA's purposes that may arise from permitting an alien's lost wage claim to proceed to trial can be alleviated by permitting a jury to consider immigration status as one factor in its determination of the damages, if any, warranted under the Labor Law. An undocumented alien plaintiff could, for example, introduce proof that he had subsequently received or was in the process of obtaining the authorization documents required by IRCA and, consequently, would likely be authorized to obtain future employment in the United States. Conversely, a defendant in a Labor Law action could, for example, allege that a future wage award is not appropriate because work authorization has not been sought or approval was sought but denied. In other words, a jury's analysis of a future wage claim proffered by an undocumented alien is similar to a claim asserted by any other injured person in that the determination must be based on all of the relevant facts and circumstances presented in the case.

In the case at bar, there was no indication that plaintiffs used false documents to obtain employment with Company-D. It must be noted that Company-D required no documentation whatsoever when they were hired. Company-D’s qualification was simply a willingness to do dangerous work. Thus, in accordance with the court’s ruling in the case of Balbuena, plaintiffs may pursue a lost wage claim.

With respect to plaintiff-one, since his injury, specifically, spinal injury, prevents him from working in the future, he no longer needs to establish that he obtained or was in the process of obtaining work authorization. Plaintiff-one’s alien status is irrelevant and defendants may not question him on that matter.

With respect to plaintiff-two, although Company-A and Company-B could theoretically argue that a future wage award based on United States wages is inappropriate assuming he has not sought work authorization or approval was sought but denied, the court will not allow defendants to question plaintiff-two on his status for several reasons. First, it appears that Company-D intentionally violated IRCA by not ascertaining its employees' authorization to work in the United States to enlist a cheaper workforce. Second, and even more importantly, mitigation encompasses an employer proving that the injured employee cannot obtain employment in New York or the USA, but only in his country of origin. However, the fallacy of this mitigation argument is that the construction industry, especially that sector that does demolition, would reemploy plaintiff-two without hesitation because of the very fact that he is undocumented and the employer may feel that it can pay less and not accord him the protection of the labor laws. To permit company-A and Company-B to ascertain plaintiff-two’s work authorization after a lost earnings claim is interposed is tantamount to encouraging employers such as Company-D, as well as defendants for turning a blind eye at Company-D’s hiring practices, to thwart IRCA's legislative policy with impunity. Indeed, what is really happening under the guise of litigating lost wages is that undocumented workers are being intimidated with the prospect of being deported and having their families and lives torn apart after providing their services for dangerous work. Thus, Company-D, as well as those sectors of the construction industry that rely on undocumented workers, could undermine immigration policy on the one hand, while undocumented workers are being threatened with the possibility of deportation if they get hurt on the job. In brief, it is a win-win situation for the construction industry while the undocumented worker bears all the risk. The court will not and cannot condone this behavior whether intimidation is the intended result or simply an unfortunate byproduct of litigating a legitimate concern.

Thus, the motion was denied in its entirety.

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On October 4, 2002, the plaintiffs filed a personal injury action arising from a motor vehicle accident and alleged that that they sustained serious injuries as defined by Insurance Law and seek to recover damages against the defendants.

The defendant moves for summary judgment in its favor. In support of the motion, the defendant submitted the following documents: with respect to plaintiff Mrs. A, the affirmed medical report of a neurologist referencing a neurological examination conducted on December 15, 2004 and the affirmed medical report of the orthopedist referencing an orthopedic examination conducted on December 15, 2004; with respect to plaintiff infant Mr. B, the affirmed medical report of the orthopedist referencing an orthopedic examination conducted on December 15, 2004 and the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004; and with respect to plaintiff infant Ms. C, the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004. (See Exhibit I.)

The lower court held that with respect to infant Ms. C, the affirmed medical report of the neurologist referencing an examination conducted on December 15, 2004 is insufficient to establish a prima facie case that infant sustained a serious injury as a result of the underlying accident because it fails to address the claims of vestibular dysfunction and left shoulder pain.
With respect to plaintiffs Mrs. A and infant Mr. B, the is evidence is sufficient to establish a prima facie case that neither plaintiff sustained a serious injury as a result of the underlying accident.

Consequently, the burden now shifts to these plaintiffs to come forward with sufficient evidence to raise a triable issue of fact as to whether either of them sustained a serious injury.
Plaintiff Mrs. A submits, in opposition to the motion, unsworn MRI reports of the lumbar and cervical spines and the affirmed neurological report dated September 2, 2005. The report revealed the range of motion losses suffered by the plaintiff. The results of a straight leg lifting examination is also an objective evidence of a serious injury. Consequently, plaintiff has raised a triable issue of fact as to whether she sustained a serious injury sufficient to defeat this summary judgment motion.

Plaintiff, infant Mr. B, submits in opposition to the motion, the unsworn MRI reports of the lumbar and cervical spines and the affirmed neurological report dated September 2, 2005. The lower court opined that in light of the denial of the plaintiff's cross motion for leave to amend the Bill of Particulars to allege disc bulges, any medical opinion rendered with respect to the existence of disc bulges is irrelevant. The examination of plaintiff Mr. B, showed some limitations of motion of the lumbar spine, however straight leg raising test yielded a negative result. Consequently, plaintiff infant Mr. B has failed to raise a triable issue of fact as to whether she sustained a serious injury sufficient to defeat the summary judgment motion. The cross motion for leave to amend the Bill of Particulars was denied as well.

An important factor to be considered when addressing a motion is whether the motion was made promptly after discovery or awareness of facts upon which such amendment is predicated. Plaintiff's counsel affirms in his affirmation dated September 7, 2005 that he just recently came into possession of a lumbar MRI report dated November 9, 2002 regarding infant Mr. B. In this regard, the Court was unable to determine whether the motion was made promptly.

The cross motion for an Order granting summary judgment to plaintiffs on the issues of liability and the existence of serious injury is denied as untimely. In this case, the Note of Issue was filed on March 15, 2005. Summary judgment motions were to have been made no later than July 13, 2005, or one hundred twenty days after the filing of the Note of Issue, and any motion made subsequent to required leave of court on good cause shown. The within cross motion was made when the cross motion papers were served upon opposing counsel, which was on September 7, 2005. Counsel on the cross motion does not seek leave of court for permission to file an untimely summary judgment cross motion. Nor does counsel on the cross motion establish good cause for the untimely cross motion. Accordingly, the cross motion seeking summary judgment in favor of plaintiffs on the issues of liability and the existence of serious injury is denied.

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On December 13, 2011 in the Supreme Court of the State of New York Appellate Division: Second Judicial Department, an interesting case was heard. The commercial vehicle accident injury that occurred in Westchester County and had been heard on September 28, 2010 was being appealed. The issue at appeal was that the property owner of a commercial property had asked the court for a summary judgment to relieve it from liability in the personal injury accident case because of contractual indemnification. In other words, they could not be held responsible for an accident or injury that occurred on the property because the business that leased the property from the owner had agreed in their contract not to hold the property owner liable. Previously, the courts had not reviewed this request.

The facts of the case are undisputed. A woman went to a fast food restaurant that was located on the property owned by the property owner. After eating, the woman left the restaurant and was struck by a commercial garbage truck that was leaving the restaurant. The woman received injuries from the accident and named the truck company, the restaurant owners, and the property owners in her suit.

The property owner states that because of the contract that says that they are not to be held liable for any actions that occur out of “any accident, injury or damage whatsoever caused to any person or property arising, directly or indirectly, out of the business conducted in the premises or occurring in, on or about the premises or any part thereof,” except if the negligence is on the part of the property owner.

Since the person who was injured had claimed that the landscaping may have had an impact on her ability to see the vehicle coming at her, and the property owner had supplied the landscaping, the issue was if the property owner was liable for the injury.

The Supreme Court agreed with the property owner that it had made a mistake previously when it had denied a summary judgment on behalf of the property owner. Because they had a contract with the restaurant that clearly stated that they would not be held liable for any incident that arose out of the course of business of the restaurant that they could not be held liable. Clearly the incident did occur in the course of the restaurant since the woman was a patron.

Continue reading "On December 13, 2011 in the Supreme Court of the State of New York Appellate Division: Second Judicial Department, an interesting case was heard" »

This personal injury claim is a result of a subway accident which occurred on June 5, 1995. Plaintiffs, Mr. M and Ms. T, were among passengers riding on a "X" train which collided with another train on the Williamsburg Bridge. Although the action was commenced in the Supreme Court, it was later transferred to the Civil Court pursuant to CPLR 325 (d), where, defendant having conceded liability, a trial was conducted solely on the issue of damages.

At the trial, Mr. M offered the testimony of a chiropractor who treated him for approximately two years after the accident, when he was employed at XYZ Chiropractic Center. XYZ Chiropractic Center shared a building with two other medical practices, ABC Medicine & Rehabilitation and DEF Spinal Rehabilitation, and it appears that they often dealt with the same patients as well. It was noted that none of the practices were still in business at the time of the trial. Mr. M's medical records from all three practices were admitted into evidence through the testifying chiropractor, notwithstanding the fact that he had left XYZ Chiropractic Center midway through Mr. M's four-year course of treatment at that facility and despite the fact that the chiropractor was not an employee or a custodian of the records of ABCl Medicine & Rehabilitation or DEF Spinal Rehabilitation.

The Court held that medical office records are admissible under the business records exception to the hearsay rule, provided a proper foundation is laid for their admissibility. While it is not necessary that the foundation witness have made the records, or even that he or she be familiar with the particular records in question, it must be shown that the witness has had some familiarity with the doctor's business practices and procedures. No such showing was made in this case of Mr. M. The chiropractor was not in a position to have known about the record-keeping practices of ABC Chiropractic Center after his departure from that facility, nor was he qualified to testify about the record-keeping practices and procedures of the other facilities. It was, therefore, error for the lower court to have admitted into evidence the medical records of the three practices through the chiropractor, which error was further compounded by plaintiff's neurological expert's reliance on those records. The Court further held that the verdict was excessive and accordingly, a new trial was ordered as to plaintiff Mr. M’s claim on the issue of damages.

With respect to Ms. T, the court held that those portions of the jury's verdict which awarded Ms. T $75,000 for past pain and suffering and $25,000 for future pain and suffering were excessive. Considering the nature and extent of her injuries, the award deviated materially from what would be reasonable compensation to the extent that it exceeded $25,000 for past pain and suffering and $15,000 for future pain and suffering. However, the court left undisturbed the award of $11,377.82 for past medical expenses.

Personal injury claims can be difficult to pursue. They can be confusing and often takes forever to resolve. Gathering of testimonies and evidence can be a chore especially to the victim who is physically incapable to gather the same. It is thus crucial for those involved in these kinds of cases to retain a counsel well versed on personal or spinal injury technicalities.

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An accident involves three vehicles which were near the intersection in Forest Hills, New York. The defendant men came to a stop behind the complainant couple's vehicle at a red stop light. The defendants slowed down but could not stop in time and struck the complainant couple's vehicle causing it to hit the couple's vehicle.

The defendants concede that initially it is their burden to demonstrate that the complainants have not suffered a serious injury as that term is used in the Insurance Law.

Serious injury means a personal injury which result in 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 constitutes 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.

Under the No Fault Law in order to sustain an action for personal injury, a complainant must establish serious injury as that is defined in the New York State Insurance Law which should mean significant. In order to raise the issue the requesting party must show an absence of any material issue of fact which would demonstrate serious injury and the right to judgment as a matter of law. In the instant case the defendants have the burden of proving, by submitting competent evidence in admissible form, that the complainant has not suffered a serious injury. The defendant presented a legitimate case of entitlement to summary judgment through the presentation of an affirmed copy of medical reports.

The defendants rely on the pre-trial depositions, photographs, and medical affirmations of their examining physicians who find that the complainant couple’s movements are within normal limits.

A Board Certified Orthopedic Surgeon submitted his affirmation with regard to the evaluation of the complainant husband. The husband's cervical reports, the range of motion was on the low level of what is considered a normal range of motion, however he found that the complainant husband’s left and right lateral rotation was ten degrees less that the lowest range of rotation which would have been considered normal.

A Board Certified Radiologist submitted his affirmation with regard to his independent review of two MRIs of the complainant husband's cervical spine. His opinion of the MRI indicated Mild spine injuries shows no evidence of focal herniation.

The defendants have come forward with sufficient evidence to support their claim that the complainant husband has not sustained a serious injury.

A physician practicing at Pain Management Center of Long Iand submits his affirmation in support of the complainant wife with regard to his medical narrative of the wife. He first saw the complainant wife on May 31, 2007 about his neck pain which radiated down his right arm. He notes that the complainant wife’s cervical MRI reported posterior bugles. The initial impression was cervical spondylosis and cervical fact syndrome. He indicates that the defendant has undergone treatment continuously since May 31, 2007. He refers to another MRI which indicates disc bugles C3 through C6. He notes that the complainant wife has been treated with short acting medication to provide symptomatic relief.

A Board Certified Orthopedic Surgeon submitted his affirmation with regard to the evaluation of the complainant wife. The wife’s cervical reports states that her range of motion is considered as normal range of motion. He found no evidence of a causally related disability.
Here the defendants have come forward with sufficient evidence to support their claim that the complainant wife has not sustained a serious injury.

The complainant couple both presented their physician's affirmation which demonstrates there is a reasonable question as to whether the complainant has sustained serious injury. While there are conflicting affirmations and affidavits the complainant couple have established triable issues of fact as to whether as a result of the accident in issue they have sustained injury which were causally related to the accident.

Accordingly, after considering the evidence in a light most favorable to the complainants’, the defendants' motion for summary judgment is denied. The defendants have failed to demonstrate that the couple has not sustained a permanent loss of use, permanent limitation, significant limitation, or 90/180 days of curtailment of his activities.

Accordingly, the defendants' motion to dismiss the claims on the grounds that they have not sustained a serious injury is denied.

Continue reading "An accident involves three vehicles which were near the intersection in Forest Hills, New York." »