In an action to recover damages for personal injuries, the complainants appeal from an order of the Supreme Court which, in effect, granted the motion of the defendant husband and wife and a man for summary judgment to dismiss the complaint insofar as asserted against them on the ground that the complainant man did not sustain a serious injury within the meaning of Insurance Law 5102 which provides that serious injury means 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 that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
The most recent developments in this area of law have focused upon the definitions of permanent loss of use of a body organ, member, function or system and permanent consequential limitation of use of a body organ or member. These provisions have provided the complainants with less of a burden in establishing and qualifying a serious injury under New York’s No-Fault Law.
Where properly raised, the issue of whether a complainant has established a legitimate case of serious injury within the meaning of Insurance Law rests with the Court in the first instance.
The defendant husband and wife established a legitimate case that the complainant man did not sustain a serious injury within the meaning of Insurance Law as a result of the subject accident. In opposition to the couple’s showing, the complainants failed to raise a triable issue of fact. The medical reports of the injured complainant’s physical therapist were un-affirmed and the injured complainant’s hospital records were uncertified and, thus, failed to raise an issue worthy of trial of fact.
Although the complainant’s reliance on un-affirmed reports of magnetic resonance imaging (MRI) scans was not improper since the results of those MRI scans were set forth in the affirmed medical report of the couple’s examining orthopedic surgeon, those reports failed to raise a triable issue of fact, as they merely showed that, as of August 2003, the injured complainant had sustained, among other things, disc herniations in his cervical spine, and a disc herniation and disc bulges in his lumbar spine. The mere existence of those herniations and bulges, in the absence of objective evidence as to the extent of the alleged physical limitations resulting from spine injuries and their duration, are not evidence of serious spinal injury and resulting to failure to raise an issue worthy of court trial.
While the complainants submitted competent medical evidence that the recent medical examinations revealed significant range-of-motion limitations in the cervical and lumbar regions of the injured complainant’s spine, they failed to proffer competent medical evidence of the existence of significant limitations in either his spinal region that were contemporaneous with the subject accident.
The complainants also failed to offer competent medical evidence that the injured complainant sustained a medically-determined personal injury of a nonpermanent nature that prevented him, for 90 of the 180 days following the subject accident, from performing his usual and customary daily activities.
Finally, the injured complainant’s affidavit failed to raise a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law.
Getting hurt due to someone else’s negligence would normally result to legal dispute. This kind of situations can be prevented if the person who caused the injury would take responsibility for it. If you want to be compensated for the pain and sufferings that you experienced from an injury, consult the Kings County Personal Injury Lawyer together with the Kings County Spinal Injury Attorney from Stephen Bilkis and Associates.