A Lawyer said that, in an action to recover damages for personal injuries, the defendant Corporation appeals from an order of the Supreme Court, Queens County, dated February 9, 2007, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).
The issue in this case is whether plaintiff sustained serious injury as a result of the accident as defined under the Insurance Law.
The Court in deciding the case defined the term “Serious Injury” Insurance Law §5102(d) means a personal injury which result in 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 constitutes 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. Under Insurance Law 5102(d) a permanent consequential limitation of use of a body organ or member qualifies as a “serious injury”, however, the medical proof must establish that the plaintiff suffered a permanent limitation that is not minor slight, but rather, is consequential which is defined as an important or significant limitation.
Whether a plaintiff has sustained a serious injury is initially a question of law for the Court. It is defendant’s obligation to demonstrate that the plaintiff has not sustained a “serious injury” by submitting affidavits or affirmations of its medical experts who have examined the litigant and have found no objective medical findings which support the plaintiff’s claim. If the defendant’s motion raises the issue as to whether the plaintiff has sustained a “serious injury” the burden shifts to the plaintiff to prima facie demonstrate through the production of evidence sufficient to demonstrate the existence of a “serious injury” in admissible form, or at least that there are questions of fact as to whether plaintiff suffered such injury.
The defendant Corporation met its prima facie burden by establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The Court said that, in opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s medical submissions were insufficient to raise a triable issue of fact since none were based on a recent examination. Defendant Corporation’s examining radiologist that the condition of the plaintiff’s cervical spine injury resulted from pre-existing degeneration and was not caused by the subject accident. Defendant Corporation’s examining radiologist also noted that the magnetic resonance imaging studies of the plaintiff’s lumbar spine evinced that he had a transitional vertebra, which was congenital, and predisposed him to abnormal movements and premature degenerative disc disease. The failure of the plaintiff’s experts to address these findings rendered speculative any conclusions they made that the plaintiff’s spinal injury restrictions were causally related to the subject accident. The plaintiff also failed to proffer competent medical evidence that he sustained a medically-determined injury of a nonpermanent nature which prevented him, for 90 of the 180 days following the subject accident, from performing his usual and customary activities.
Accordingly, the Court held that the order is reversed, on the law, with costs, and the motion of the defendant Corporation for summary judgment dismissing the complaint insofar as asserted against it is granted.
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