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Insurance Law § 5102(d)

In this personal injury action, plaintiffs claimed to recover monetary damages for personal injury allegedly sustained by him as the result of a motor vehicle accident that occurred in County of Suffolk, State of New York. A New York injury Attorney said that defendants filed several motions: the first one was filed regarding precluding Plaintiff from offering testimony at trial of this action, and dismissing Plaintiff’s Complaint in its entirety on the grounds that he has not complied with the Order of the Court, or otherwise. Second, is a motion regarding Summary Judgment against the plaintiff.

The Court ruled that in order for the Court to grant such relief, it must clearly appear that there are no material issues of fact. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.

Once a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact is shown, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action.

Regarding the issue of serious injury, Insurance Law § 5102(d) sets forth nine specific ways in which Plaintiff can establish that she suffered such an injury, as defined therein:
“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 than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

The term “significant”, as it appears in the statute, has been defined to mean “something more than a minor limitation of use” The Plaintiff must demonstrate not only the extent or degree of limitation, but also its duration. The duration of the injury must be more than “fleeting” The term “consequential” has been defined to mean important or significant. A “permanent loss” of use of a body organ, member, function or system must be total. In order to prove the extent or degree of physical limitation, an expert can designate a numeric percentage of a plaintiff’s loss of range of motion or give a “qualitative assessment of a plaintiff’s condition…provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body organ, member, function or system”

To Be Cont…

A person who has a right under the law should be given a competent advice. We have our New York Personal Injury Lawyers who can give you competent and reliable advice. Here in Stephen Bilkis, we help the helpless and protect the victims.

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