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Insurance Law § 5102 (d), and (2)

A Bronx Estate Litigation Lawyer said that, this is an appeal (1) from an order of the Supreme Court, Bronx County (Howard R. Silver, J.), entered May 6, 2002. The order granted defendants’ motions for summary judgment dismissing the complaint in a personal injury action arising from an automobile accident for failure to establish a “serious injury” as defined by Insurance Law § 5102 (d), and (2) from a decision of that court, dated on or about March 18, 2002.

Plaintiff walked away from the scene of the subject bicycle accident and thereafter traveled by subway and train from the Bronx to Long Island. Ultimately, she went for three years (from September 1998 to September 2001) without seeking medical care for her alleged serious injuries. Nonetheless, plaintiff alleges that she suffered a “serious injury” within the meaning of Insurance Law § 5102 (d). The majority, relying on “objective” evidence supplied only by unsworn and unaffirmed reports that defendants submitted for purposes of refutation, now holds that plaintiff is entitled to a trial on this issue. In my view, because plaintiff has not given us any substantive explanation for her protracted period without treatment, Supreme Court’s order dismissing her action should be affirmed.

On December 25, 1997, plaintiff, who then resided at a rehabilitation center on Long Island, visited her sister in the Bronx. After the visit, while defendant was driving plaintiff to a subway station, a car operated by defendant collided with the driver’s side of the vehicle. When the police arrived, plaintiff – who had been sitting in the front passenger’s seat of the car – declined their offer of ambulance transportation to a hospital, explaining that she wished to comply with her rehabilitation center’s curfew policy. Accordingly, instead of going directly from the scene of the accident to a hospital, plaintiff walked to the subway station, and thereafter made the long trip from the Bronx to Long Island by public transportation.

After arriving at the rehabilitation center, plaintiff went to the emergency room of a hospital in Bay Shore, Long Island, where she was examined, x-rayed, given Motrin and discharged, all during the evening of the day of the accident. Plaintiff alleges that she was bedridden for two weeks after the accident. She resumed full-time work the following month (January 1998).

It appears that the first professional plaintiff consulted about her alleged injuries (after her brief emergency room visit) was her lawyer. According to plaintiff’s deposition testimony, it was her lawyer who referred her to a chiropractor, whom plaintiff first visited 10 days after the accident. Plaintiff visited her periodically from January to July of 1998, and then once more the following September, to receive treatment for neck and back pain. During the three years from her last visit to her in September 1998 until her papers opposing defendants’ summary judgment motion were submitted in September 2001, plaintiff apparently did not receive any treatment for physical complaints allegedly connected to the subject accident.

The chiropractor referred plaintiff to a neurologist, to whom plaintiff made only one visit, on June 11, 1998. In an unsworn, unaffirmed report, he recommended various forms of follow-up care, Aside from seeing her several more times through September 1998, plaintiff did not avail herself of any of the follow-up care he recommended. She also referred plaintiff to a psychologist, for treatment of an “adjustment disorder with mixed anxiety and depressed mood” that was allegedly an outgrowth of the car accident. Between April and June of 1998, plaintiff made 12 visits, of 15 to 20 minutes each to the psychologist.

To Be Cont…

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