Published on:

New York Appellate Court discusses “serious injury” requirement pursuant to Insurance Law § 5102 – Brown v. Achy, 2004 NY Slip Op 3703 (N.Y. App. Div., 2004)


The issue in this car accident case is whether the plaintiff has sustained a “serious injury” as defined by the New York Insurance Law statute. According to the law, in order for a plaintiff to make a claim for pain and suffering, the plaintiff must have suffered a serious injury. The statute provides examples of what would be considered a serious injury. Some of those examples include: an injury that results in death, dismemberment, significant disfigurement, fracture, permanent loss of a body organ, or significant limitation of use of a body function or system.

The plaintiff and defendant were involved in a car accident. The plaintiff filed a personal injury lawsuit against the defendant based on suffering an injury to her spine including a disc herniation in the accident. The defendant moved for summary dismissal of the case, asserting that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102 (d).

A motion for summary judgement is a request for the court to rule that the other party has no case. When as in this case the defendant makes a motion for summary judgement, the defendant is asserting that because there are no facts which can be reasonably disputed, the case should not go before a jury at all. In other words, based on the law, the defendant must win because there is no way that the plaintiff can win.
The burden of proof in a summary judgement hearing is on the moving party which is the defendant in this case. The defendant has the burden of submitting evidence that will show that there is no genuine dispute as to any material fact, and he is entitled to judgement as a matter of law. If the defendant is able to do this, he does not automatically win the case. The burden then shifts to the plaintiff. If the plaintiff can produce evidence that disputes the defendant’s evidence, then the court may include that there is indeed a genuine issue of material fact. When considering a motion for summary judgement, a judge will view all evidence in the light most favorable to the opposing party—in this case, the plaintiff. If the motion is granted, the case will not go to trial. If it is denied, the case will move forward to trial.

In support of his summary judgement motion, the defendant submitted reports from two doctors who concluded that the plaintiff did not have a disc herniation.

In response to the defendant, the plaintiff submitted an MRI which revealed a central cervical disc herniation at C3-4. In addition, the plaintiff submitted results of an EMG/NCV (electromyogram and nerve conduction velocity) study with abnormal findings at C5-6 and L5-S1. In addition, the plaintiff’s neurologist testified that he observed that plaintiff suffered from decreased range of motion in her head, neck and lower back. Further, plaintiff’s doctor submitted testimony that the plaintiff has spinal damage and as a result has a permanent partial disability.

Based on the objective evidence submitted by the plaintiff showing that her spine is seriously damaged coupled with the findings of her chiropractor, the court concluded that the plaintiff has raised a triable issue of fact as to whether she sustained a serious injury as defined by the Insurance Law.

While the defendant in this case moved for summary judgement dismissal of the case, there is such a thing as partial summary judgement. With partial summary judgement, the moving party is requesting a ruling on one or more (but not all) of the claim. The judge may grant partial summary judgement on those issues but leave others for trial. In some instances, the judge may grant summary judgement regarding liability, but still hold a trial to determine damages.

Posted in:
Published on:

Comments are closed.

Contact Information