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New York Appellate Court Discusses Requirement to Show “Serious Injury”


The affirmed report of defendants’ independent examining neurologist, indicated that an examination conducted on April 7, 2006 revealed that there is no permanency from a neurological perspective. He opined that there is no objective evidence of any neurological disability or abnormality.

The affirmed report of defendants’ independent examining psychiatrist, showed that an examination conducted on June 26, 2006 revealed that plaintiff’s concentration, computational ability, memory, attention, judgment, and insight were all good. He opined that there is no disability or permanency and that plaintiff is capable of performing her usual daily activities without restrictions.

The affirmed report of defendants’ independent evaluating radiologists showed that an MRI of the left shoulder taken on November 21, 2002 revealed an impression of “Mild degenerative changes about the acromioclavicular joint resulting in mild impingement; otherwise unremarkable study. There are no findings to suggest trauma or sequel. An MRI of the cervical spine taken on December 12, 2002 revealed an impression of degenerated, bulging L5-S1 disc in association with productive bony changes. The doctors state that the findings are consistent with chronic degenerative spinal disease which is a pre-existing condition.

The aforementioned evidence amply satisfied defendant’s initial burden of demonstrating that plaintiff did not sustain a “serious injury” under all categories except for the “90/180-day” category.

Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.

On the other hand, defendant has failed to raise a triable issue of fact as to the 90/180-day claim. Defendants’ experts failed to render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180 day period immediately following the accident. The reports of the IME’s relied upon by defendant fail to discuss this particular category of serious injury and further, the IME’s took place well beyond the expiration of the 180-day period. With respect to the 90/180-day serious injury category, defendants have failed to meet their initial burden of proof and, therefore, have not shifted the burden to plaintiff to lay bare its evidence with respect to this claim. As defendants have failed to establish a prima facie case with respect to the ninth category, it is unnecessary to consider whether the plaintiff’s papers in opposition to defendants’ motion on this issue were sufficient to raise a triable issue of fact. Accordingly, defendants are not entitled to summary judgment with respect to the ninth category of serious injury according to a Queens Personal Injury Lawyer.

In opposition to the motion, plaintiff submitted: an unsworn an uncertified accident report, defendants’ deposition testimony, an inadmissible narrative report of plaintiff’s chiropractor, unsworn MRI reports of plaintiff’s radiologist, unsworn narrative reports of plaintiff’s physician, an unsworn narrative report of plaintiff’s neurologist, unsworn medical records, an attorney’s affirmation, and plaintiff’ s deposition testimony.

Medical records and reports by examining and treating doctors that are not sworn to or affirmed under penalties of perjury are not evidentiary proof in admissible form, and are therefore not competent and inadmissible. Therefore, unsworn records of plaintiff’s examining and treating doctors will not be sufficient to defeat a motion for summary judgment.

While the narrative report of plaintiff’s treating chiropractor, includes an affirmation, it must be noted that a chiropractor is not one of the persons authorized to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice. Accordingly, the narrative report is also inadmissible as to spinal injury

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