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Defendant Moves for Motion to Dismiss, Stating Requirements Under NY Insurance Law 5102 Not Met


This is a case being held before the Supreme Court of Kings County. The defendant has moved for an order to dismiss the plaintiff’s complaint on the basis that the injuries that the plaintiff sustained do not meet the requirements of a serious injury under the New York Insurance Law section 5102.

Case Background

The plaintiff filed a summons and verified complaint with the Kings County Clerk’s office in April of 2009. The defendants replied with a verified answer in August of 2009, thus joining the issue. The note of issue in this case was filed in October of 2010.

The plaintiff’s action in the case is for damages from personal injuries that were sustained as a result of a car accident. The plaintiff’s complaint and bill of particulars allege that a commercial vehicle that was operated by the defendant struck the plaintiff as the plaintiff was walking near Kings Highway and Church Avenue in Brooklyn. The plaintiff alleges to have sustained severe physical injuries as a result of the defendants negligent operation of the vehicle.

Motion Papers

The defendants have issued several motion papers including a notice of motion, an affirmation from their attorney, and nine exhibits as evidence. The first exhibit consists of an E-law printout from December, 2010. The second exhibit is a copy of the summons and verified complaint from the plaintiff. The third exhibit is a copy of the verified answer from the defendant. The fourth exhibit is a copy of the bill of particulars from the plaintiff. The fifth exhibit is a copy of the medical reports from the neurologist. The sixth exhibit is a copy of the orthopedic medical report. The seventh exhibit is a copy of the radiological report. The eighth and ninth exhibits consist of claims made by the plaintiff in two prior accidents.

The plaintiff has offered opposition papers including three exhibits. The first exhibit is the affidavit from the plaintiff. The second is a copy of a narrative medical report from an orthopedist. The final exhibit is a copy of the deposition testimony provided by the plaintiff.

Case Discussion and Decision

In order for the court to grant a summary judgment in any case it must be proven that there is no triable evidence in the case. In this particular case the defendant is stating that the two prior accidents that the plaintiff was involved in caused the more serious injuries. The defendant argues that the injuries that the plaintiff sustained in this particular accident are not severe enough to meet the requirements under New York Insurance Law section 5102. The defense has offered proof in the form of reports from two physicians.

The court finds that the proof provided by the defendants is not enough in this particular case. The reports of the doctors that have been provided do not specifically discuss the 90 day to 180 day category of serious injuries. For these reasons the court rules in favor of the plaintiff. The motion by the defendant for dismissal of the complaint made against them based on Insurance Law section 5102 is denied.

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