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Defendant Seeks Summary Judgment Arguing Complainant Didn’t Prove Serious Injury


A woman moves in accordance to the Insurance Law of the State of New York for an order granting her summary judgment on the ground that the complainant man did not sustain a serious injuryin the subject accident as defined by New York State Insurance Law. The complainant opposes the woman’s motion.

The lawsuit stems from personal injuries allegedly sustained by the man as a result of an automobile accident with the woman when the man’s vehicle was exiting Northern State Parkway. The man was operating a 2003 Lincoln Town Car which was owned by his employer, a car company. The woman was the owner and operator of a 2001 Chevrolet. It is alleged that the automobile that was being driven by man was struck in the rear by the automobile being driven by the woman. The man claims that the impact was heavy and caused his glasses to fly off and his body to move back and forth inside the vehicle despite the fact that he was seat belted As a result of the car accident the man claims that he sustained injuries. He commenced the action with service of a Summons and Verified Complaint.

It is well settled that the proponent of a motion for summary judgment must make a legitimate complaint showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue.

Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the man did not sustain a serious injury. Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a serious injury.

In support of a claim that the complainant has not sustained a serious injury, an accused party may rely either on the sworn statements of the accused party’s examining physicians or the unsworn reports of the complainant’s examining physicians. However, unlike the movant’s proof, unsworn reports of the complainant’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a complainant’s injury.

A complainant’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor’s observations during the physical examination of the complainant. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. Conversely, even where there is ample proof of a complainant’s injury, certain factors may nonetheless override a complainant’s objective medical proof of limitations and permit dismissal of a complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

When moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the complainant did not sustain a serious injury. Within the scope of the movants’ burden, a defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The woman submits that, in 2005, the man was involved in a major motor vehicle accident for which he had seen a variety of medical providers and commenced a lawsuit for personal injuries arising out of said accident, with representation by the same attorneys who are representing him in the instant matter. The woman further submits that in addition to the prior accident in 2005, the man was involved in six other prior automobile accidents, for which he commenced a lawsuit each time. He was represented by the same counsel. The woman adds that the injuries claimed for the subject accident are set forth in the man’s Bill of Particulars. They include claims for left knee injury, left shoulder injury, cervical spine injury, lumbar spine injury, radiculopathy injury, and neuropathy injury. Similarly, in the Bill of Particulars and Supplemental Bill of Particulars for the man’s motor vehicle accident and lawsuit arising out of his accident on February 11, 2005, the claims are also for left knee injury, left shoulder injury, cervical spine injury, lumbar spine injury, radiculopathy injury and neuropathy injury. The woman argues that in the man’s testimony, he admitted that his automobile’s air bag did not inflate, that he did not strike anything in the interior of the automobile and the he did not lose consciousness. The man also testified that, after the accident, he stood outside his car for approximately a half-hour before the police arrived and, when they did, he declined needing medical attention. The man then drove to his meeting in Melville and later returned home to Valley Stream. The woman states that following the accident, the man went for treatment at New York Pain Management and Medical Services. The man had been a patient at New York Pain Management and Medical Services since his accident in 2005. The man’s treatment there continued there until 2007. The woman argues that the treatment that the man received at New York Pain Management and Medical Services following the May 2008 accident was similar to the prior treatment that he received following his 2005 accident although he also had treatment on his left knee after the 2005 car accident.

The woman states that it is undisputed that the man had long-standing complaints with regard to his left shoulder, back, knees and neck. They are related to his prior accidents, as well as his pre-existing degenerative conditions, and his diabetes. The woman argues that the man’s complaints alleged to be related to injuries sustained in the May 2008 accident are simply not proximately connected.

A board certified orthopedist reviewed the man’s medical records and conducted a physical examination of the man. The woman relies on the testimony of the man which indicates that following the subject accident in May 2008 he did not miss any time for work at the car company or his own company, that he had bed rest for only one day, that he continued his walking regimen after the accident-slowly returning to his one mile distance, five days per week, twice a day and that he engaged in his home exercises. The man also testified that he traveled to India in 2008, after the subject accident, and again in 2010. During the trip in 2008, he also stopped to visit Germany and additionally traveled to Las Vegas in 2008 after his accident.

Based upon this evidence, the Court finds that the woman has established a legitimate case that the man did not sustain serious injury within the meaning of New York State Insurance Law. The burden shifts to the man to come forward with evidence to overcome the woman’s submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained.

To support his burden, the man submits his own affidavit, an affirmation from who treated him beginning on May 21, 2008, an affidavit of a chiropractor who treated him following his May 2008 accident, the affirmation of a board certified orthopedist who examined him on April 27,2009 and August 28,2009 and the affidavit of a radiologist with All County Open MRI and Diagnostic Radiology under whose auspices administered and supervised the administration and examination of the MRIs of the man’s cervical spine and lumbosacral spine performed on July 26, 2008 and MRIs man’s left shoulder and left knee performed on August 2, 2008.

As indicated, the man submitted the affirmation of who treated him beginning on May 21, 2008. In her affirmation, the physician states that on May 21, 2008 the man presented himself to her office in regard to a motor vehicle accident he was involved in on May 16, 2008. She was aware that prior to the accident, the man was involved in a motor vehicle accident on February 11, 2005 wherein he sustained lower back injury, cervical spine injury and mid back injury for which he underwent treatment until July of 2005 in the form of TENS unit and massage as well as physical therapy exercises. In regard to that accident, the patient underwent MRIS which revealed disc herniation as well as disc bulges. The man indicated he had stopped treating in July 2005 as his pain and symptomology had abated. She was also advised by the man that he was also involved in a motor vehicle accident on April 10, 1989 as well as May 21, 2001, wherein he had cervical spine injury, thoracic spine injury and lumbar spine injury which she was informed by the patient that he treated with a chiropractor and acupuncturist through January of 2002.

It was in her expert opinion that the injuries as diagnosed were causally related to the motor vehicle accident of May 16, 2008 and that said injuries were consistent with the clinical presentation in my office. It was further my expert medical opinion that the disc pathology diagnosed via MRI are injuries of a permanent nature in that bulging and herniated discs do not lend themselves to resolution and are therefore permanent. It was in her expert medical opinion that the left shoulder and left knee pathology diagnosed via MRI were also injuries of a permanent nature and were causally related to the subject motor vehicle accident.

In support of his argument, the man submits his own affidavit in which he states during the first six months after the accident, he was unable to perform the following: food shopping; carrying groceries; exercising; participating in daily morning walks; maintaining my car; washing my car; spending time caring for grandchild; taking grandchild to park to go bike riding; enjoying social gatherings and parties with friends and family during the summertime; long drives to visit family; take care of chores outside; gardening; and dancing and enjoying with friends and family. Despite the prior accidents he was involved in, at the time of the accident of May 16, 2008, he was pain free and leading a full normal active lifestyle including going to work every day as a limousine driver.

The Court concludes that the affirmations and affidavits provided by man clearly raise genuine issues of fact as to injuries causally related to the May 17, 2008 accident. Consequently, the woman’s motion for summary judgment is denied.

Accidents happen because of someone’s negligence. Sometimes though, there are those who take advantage of the situation and put all the blame of their injuries on the accident even though it did not result from the said incident. If you are being taken advantage by the person who became a victim of the accident that you caused, consult the NY Spine Injury Lawyers and the New York City Injury Attorneys. You can also seek the services of NYC Personal Injury Lawyers together with the NY Spinal Injury Attorneys from Stephen Bilkis and Associates.

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