An accident involves three vehicles which were near the intersection in Forest Hills, New York. The defendant men came to a stop behind the complainant couple’s vehicle at a red stop light. The defendants slowed down but could not stop in time and struck the complainant couple’s vehicle causing it to hit the couple’s vehicle.
The defendants concede that initially it is their burden to demonstrate that the complainants have not suffered a serious injury as that term is used in the Insurance Law.
Serious injury 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 the No Fault Law in order to sustain an action for personal injury, a complainant must establish serious injury as that is defined in the New York State Insurance Law which should mean significant. In order to raise the issue the requesting party must show an absence of any material issue of fact which would demonstrate serious injury and the right to judgment as a matter of law. In the instant case the defendants have the burden of proving, by submitting competent evidence in admissible form, that the complainant has not suffered a serious injury. The defendant presented a legitimate case of entitlement to summary judgment through the presentation of an affirmed copy of medical reports.
The defendants rely on the pre-trial depositions, photographs, and medical affirmations of their examining physicians who find that the complainant couple’s movements are within normal limits.
A Board Certified Orthopedic Surgeon submitted his affirmation with regard to the evaluation of the complainant husband. The husband’s cervical reports, the range of motion was on the low level of what is considered a normal range of motion, however he found that the complainant husband’s left and right lateral rotation was ten degrees less that the lowest range of rotation which would have been considered normal.
A Board Certified Radiologist submitted his affirmation with regard to his independent review of two MRIs of the complainant husband’s cervical spine. His opinion of the MRI indicated Mild spine injuries shows no evidence of focal herniation.
The defendants have come forward with sufficient evidence to support their claim that the complainant husband has not sustained a serious injury.
A physician practicing at Pain Management Center of Long Iand submits his affirmation in support of the complainant wife with regard to his medical narrative of the wife. He first saw the complainant wife on May 31, 2007 about his neck pain which radiated down his right arm. He notes that the complainant wife’s cervical MRI reported posterior bugles. The initial impression was cervical spondylosis and cervical fact syndrome. He indicates that the defendant has undergone treatment continuously since May 31, 2007. He refers to another MRI which indicates disc bugles C3 through C6. He notes that the complainant wife has been treated with short acting medication to provide symptomatic relief.
A Board Certified Orthopedic Surgeon submitted his affirmation with regard to the evaluation of the complainant wife. The wife’s cervical reports states that her range of motion is considered as normal range of motion. He found no evidence of a causally related disability.
Here the defendants have come forward with sufficient evidence to support their claim that the complainant wife has not sustained a serious injury.
The complainant couple both presented their physician’s affirmation which demonstrates there is a reasonable question as to whether the complainant has sustained serious injury. While there are conflicting affirmations and affidavits the complainant couple have established triable issues of fact as to whether as a result of the accident in issue they have sustained injury which were causally related to the accident.
Accordingly, after considering the evidence in a light most favorable to the complainants’, the defendants’ motion for summary judgment is denied. The defendants have failed to demonstrate that the couple has not sustained a permanent loss of use, permanent limitation, significant limitation, or 90/180 days of curtailment of his activities.
Accordingly, the defendants’ motion to dismiss the claims on the grounds that they have not sustained a serious injury is denied.
Witnesses and evidence are relevance in proving an allegation. If you lack these two and you are having a hard time winning your legal dispute that arose out of an accident, consult Stephen Bilkis and Associates to discuss the services of the Queens County Injury Lawyer together with the Queens County Spine Injury Attorney.