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Insurance Law § 5102 (d), and (2)…cont

An MRI of plaintiff’s cervical spine was made in April 1998, apparently also upon her reference. According to the unsworn and unaffirmed MRI report dated April 17, 1998, the only abnormality the MRI revealed was “central disc herniation at C3-C4.” “No other focal disc herniation is seen,” reported. The report of another physician based on an examination of the same MRI, dated September 14, 1999, reached a different conclusion. The doctor who affirmed his report made the following findings: “Review of actual MRI of the claimant’s cervical spine failed to reveal an acute herniated disc at any level and no herniated disc at the particular C3-4 level as mentioned in the radiology report.”

In moving for summary judgment in this action, defendants submitted MRI report, as well as his affirmed report based on an examination of plaintiff conducted in May 1999. The examination report noted that plaintiff’s stated height was 5 feet, 3 inches, and her weight was then 290 pounds. From the examination, the doctor concluded: “Plaintiff is not disabled as a result of that accident of December 25, 1997 and requires no further orthopedic care or physical therapy. There are no objective findings at this time to confirm the presence of an acute herniated disc in the area of the cervical spine related to the accident of 12/25/97.”
Among other things, the doctor took range of motion measurements for both the cervical and lumbar spine. The doctor noted that “examination of both upper extremities reveals full range of motion of shoulders, elbows, wrist, and hands with no pain noted.” He further noted that, with regard to her lower extremities, plaintiff had “bilaterally negative straight-leg raising tests.”

A Bronx Estate Litigation Lawyer said that, this personal injury lawsuit emerges from an automobile accident, and once again presents us with the sometimes frustrating task of deciding when evidence presented on a motion for summary judgment meets the “serious injury” threshold (Insurance Law § 5102 [d]), an elusive standard that all too frequently escapes facile and final resolution. In determining a motion for summary judgment where the issue is whether plaintiff has sustained a serious injury defined by Insurance Law § 5102 (d), the defendant bears the initial burden to present competent evidence that the plaintiff has no cause of action. Defendants here met their burden by presenting reports of two doctors who conducted independent medical examinations. These reports despite acknowledging the report of plaintiff’s MRI which defendants initially submitted in support of their respective motions which revealed a central cervical disc herniation at C3-4 concluded that there were no other objective findings to confirm the disc herniation.

To Be Cont…

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