Published on:

The complainant provides only one medical affirmation

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.

When we acquire injuries, it is our obligation to our self that we seek medical attention. If we don’t, then we prolong our agony and we risk the possibility of finding out any possible serious illness that could be addressed immediately. A New York City Spinal Injury Lawyer or a NYC Personal Injury Attorney can help you find legal ways to claim for your spine-related injuries. Stephen Bilkis and Associates can also provide a NY Injury Lawyer if you need to hire one.

Contact Information