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Defendant Seeks Summary Judgment Pursuant to Insurance Law 5102


This case is about the defendants’ renewed cross motion for summary judgment seeking the dismissal of the complaint on the ground that Plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d)

On August 22, 2002, Plaintiff commenced this personal injury action against the defendant driver and defendant taxi company. On January 1, 2001, Plaintiff alleged that defendant driver rear-ended his vehicle at the traffic light on Flatbush Avenue Extension at Livingston Street in Brooklyn while he was stopped at the light. In the court’s earlier decision, defendant taxi company was held vicariously liable for the negligence of its driver. The decision also denied defendants’ summary judgment cross-motion, which was based on the plaintiff’s alleged failure to establish a qualifying serious injury, but said denial was without prejudice to renewal upon completion of discovery. Hence, this renewed motion for summary judgment.

The defendants argued that the plaintiff has failed to meet the statutory requirements of a serious injury under Insurance Law § 5102 (d).

To support their motion, defendants submitted affirmed medical reports from its orthopedic surgeon and radiologist. Defendants’ orthopedic surgeon reported that the plaintiff exhibited a normal range of motion and moved pain free within this normal range. On the other hand, Defendants’ radiologist reported that the plaintiff’s CAT scans, taken 25 days after the accident at issue, showed spinal degeneration. He also found “no evidence of acute or recent injury,” rather a depiction of “age-related chronic” degeneration of the spine.

In opposition to the said motion, Plaintiff first argued that the defendants’ renewed cross motion should be denied on the ground of the res judicata doctrine. Plaintiff claims that the prior determination granting him summary judgment resolved both the liability and serious injury issues presented therein and contends that the defendants needed to pursue any remedy through appeal.

Plaintiff presented only one medical affirmation, which is from his neurologist, an unaffirmed “patient narrative” by a doctor in Brooklyn Hospital, the CD-ROM of the plaintiff’s 2001 scans, and an unaffirmed signed letter from the radiologist who performed the 2001 scans and describing the MRI results.

Plaintiff’s neurologist reported that the plaintiff had decreased spinal range of motion, weakness in the arm and leg muscles and relied on the 2001 images to highlight “the presence of a chronic bilateral C5-C6 and L5-S1 radiculopathy secondary to his motor vehicle accident of 2001.”

The unaffirmed narrative from the doctor in Brooklyn Hospital reported a decrease in movement and motor strength. Specifically, he states in an unsworn letter that he found a 90 percent decrease from normal in right and left lateral flexion, extension, and rotation. Further, he found “decreased muscle strength of the right deltoid, right wrist flexors and right wrist extensors,” diagnosing a +2/5 motor strength on the right “with marked pain upon both active and passive range of motion.”

The said doctor neither noted the plaintiff’s specific measurements nor the “normal” comparative measurements. Also, the plaintiff notes that he was treated by the said doctor several times per week from January 11, 2001 to July 10, 2001, and he argues that the facts demonstrate that he has suffered a “serious injury” under Insurance Law § 5102 (d).

Upon consideration of the foregoing, the court held that Plaintiff erroneously invoked the doctrine of res judicata. In this case, a final judgment on the merits only existed 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. The prior decision, granting summary judgment solely on the vicarious liability issue, dismissed the serious injury issue without prejudice pending completion of discovery.

The court further held that the defendants were able to establish a prima facie showing that the plaintiff did not sustain a serious injury as defined by Insurance Law § 5102 (d) through their doctors’ affirmed reports and affirmations citing objective tests that found a normal range of motion and no disabilities causally related to the 2001 accident.

The documents submitted by Plaintiff failed to meet the evidentiary burden which first involves judging the severity of the injury from the point of the 2001 car accident. Instead of submitting affirmed or sworn statements of doctors treating him from 2001 through the present, he supplied an unaffirmed statement from a doctor in Brooklyn Hospital, which, even if permissibly considered, does not establish the plaintiff’s inability to perform “substantially all” of his daily activities for 90 of the first 180 days after the accident.

Furthermore, the court held that the plaintiff failed to explain the gap in treatment between the 2001 visits to his doctor in Brooklyn Hospital and the 2007 visits to his Neurologist. To satisfy the statutory burden, the plaintiff must have suffered permanent injuries that have impaired his daily activities. The cessation of treatment without evidence about the reason behind the gap (for example, a lack of funds) requires granting summary judgment for the defendants The so-called gap in treatment was, in reality, a cessation of all treatment… (w)hile a cessation of treatment is not dispositive – the law surely does not require a record of needless treatment in order to survive summary judgment – a plaintiff who terminates therapeutic measures following the accident, while claiming “serious injury,” must offer some reasonable explanation for having done so”.

The court eventually dismissed the complaint for lack of a serious injury.

Stephen Bilkis and Associates with its New York Spinal Injury Lawyers can assist you with your legal needs. It aims to provide you adequate knowledge and advise on how to argue your case. It has offices located within New York Metropolitan area.

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