The plaintiff commenced this personal injury action against the driver and owner of a New York City taxi, involved, along with the plaintiff, in a motor vehicle accident at the traffic light on the street. The plaintiff alleges that he was stopped at the light when the driver rear-ended his vehicle. The driver’s whereabouts throughout this proceeding have been unknown, and the owner was held vicariously liable for driver’s negligence in the court’s earlier decision.
A source said that he defendants argue that the plaintiff has failed to meet the statutory requirements of a serious injury under Insurance Law, which defines serious injury as: A personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; 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 constitute 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. They present affirmed medical reports from two physicians in support of this argument. The first report references the plaintiff’s repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. The second affirmed medical report, was a radiology study of the plaintiff’s CAT scans submitted to the Hospital which shows that no evidence of acute or recent injury, rather a depiction of age-related chronic degeneration of the spine.
The plaintiff argues that the unsworn and sworn medical reports he has submitted in opposition to the defendants’ renewed summary judgment cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of excerpts of correspondence from the Social Security Administration (SSA), the plaintiff further notes that the SSA has determined that he is disabled.
In this injury case, the court decided in this manner:
Firstly, the plaintiff erroneously invokes the res judicata doctrine which precludes parties from litigating a previously decided claim and is based on judicial efficiency. “Res judicata, or claim preclusion, is invoked to prevent a party, or one who is in privity with the party, from re-litigating a previously litigated action. In other words, res judicata will only apply if there has been a final judgment on the merits” Here, a final judgment on the merits only exists regarding the defendants’ liability to the plaintiff; the issue of whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) remains unresolved.
This court has made no final determination whether the plaintiff sustained a serious injury under Insurance Law § 5102 (d). The prior ruling simply denied the defendants’ summary judgment cross motion on this issue without prejudice pending discovery of the plaintiff’s medical records and granted the defendants leave to renew their cross motion after the plaintiff obtained the necessary documents to show proof of his serious injury. The plaintiff mistakenly interprets this prior ruling as a final adjudication of the serious injury issue, rather than merely an extension of time to complete his own court-mandated discovery. Hence, the plaintiff’s objections to placing the renewed summary judgment cross motion on the calendar and his contention that the defendants were required to file an appeal about the serious injury issue lacks merit.
Secondly, evaluating the cross motion itself involves recognizing that summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should only be employed where no triable issues exist. Granting a summary judgment motion occurs if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law, and the party opposing the summary judgment motion fails to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact If the plaintiff’s injuries fall within the statutory definition of “serious,” articulated in Insurance Law § 5102 [d], then the plaintiff may maintain an action pursuant to Insurance Law § 5104 (a), which allows for recovery “for personal injuries arising out of negligence in the case of a serious injury.”
Thirdly, the defendants must meet the statutory standard through affirmed reports of medical professionals showing a lack of a serious injury as determined through objective tests. “A defendant who submits admissible proof that a plaintiff seeking damages for personal injuries arising from a motor vehicle accident has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious spine injury within the meaning of Insurance Law § 5102 (d)”
In sum, the court ordered that the defendants’ summary judgment cross motion is granted on the issue of serious injury, and the complaint is dismissed for lack of a serious injury sustained in the 2001 accident, the subject of this action. Furthermore, the court ordered that the plaintiff’s request to dismiss the defendants’ cross motion and for sanctions is denied as academic.
Injuries suffered by reason of the negligence of others are such a painful thing. Most of the victims become helpless because they don’t know what their rights are under the law. Here in Stephen Bilkis and Associates, we have our New York Personal Injury Lawyers who will let you know what your rights are and how to enforce it. Particularly, we have our New York Spinal Injury Attorneys to defend you against these unruly individuals.