By: Robert Baer, Esq. and Nick Franchak, Esq.
Frequently, New York attorneys are presented with the task of litigating cases that fall into the "serious injury" threshold, or more specifically, Insurance Law 5102(d). These cases typically result in a great deal of motion practice, which can be critical in shaping a case and resolving issues on its merits prior to trial. Presented here is a summary of significant serious injury cases and decisions that will aid the young lawyer in constructing a winning motion practice whether as a defendant or plaintiff, as well as developing successful appeals. Helpful guidelines on how to effectively use the information contained in the decisions are also included.
In order to recover for non-economic losses in New York, plaintiffs must demonstrate that they have sustained a serious injury under Insurance Law Section 5102 (d). The definition of a serious injury looks simple on its face as outlined below. However, in practice, it has proven to be quite the opposite, as many of these categories are open to interpretation. In this article, we will provide an overview of the categories and then drill down to recent key cases that can be used by both plaintiff attorneys and defense counsel in their motion practice around this complex issue. The practice pointers will help guide the practitioner toward successful strategies as well as what to avoid in motion papers.
The defining statute for serious injury in the state of New York is the Insurance Law 5102(d) which states:
"Serious injury" means a personal injury which results in one or more of the following:
3. Significant disfigurement
5. Loss of a fetus
6. Permanent loss of use of a body organ, member, function or system
7. Permanent consequential limitation of use of a body organ or member
8. Significant limitation of use of a body function or system
9. 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 90 days during the 180 immediately following the occurrence of the injury or impairment.
Several of the categories are fairly straightforward with the only issue being that the injury was caused by an underlying automobile accident. Included in this group would be death, dismemberment, fracture, and loss of fetus.
The remaining categories of injury require, at the very least, medical evidence and deposition testimony from the claimant to establish a "serious injury." These are the areas where the case law on the matter is a key factor in determining whether a motion is granted or denied.
The primary issue in any motion for summary judgment is to establish the burden of proof. The law in New York is clear that the defense, as the moving party, has the burden of establishing proof, in admissible form, that they are entitled to summary judgment for plaintiff's failure to meet the "serious injury" threshold. This can be accomplished by submitting medical evidence and testimony that shows that the plaintiff did not meet any of the categories under insurance Law 5102 (d) or that the injury did not result from the underlying automobile accident. Once that burden has been met, the burden shifts to the plaintiff to present evidence in admissible form to create an issue of fact, which would preclude a finding of summary judgment by the Court. These are standard guiding principles for any motion practice as the movant or the opponent of the motion.
One other key issue is timeliness. C.P.L.R. section 3212(a) provides:
(a) Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided, however, that the court may set a date after which no such motion may be made, such date being no earlier than 30 days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than 120 days after the filing of the note of issue, except with leave of court on good cause shown.
The triggering event is the filing of a note of issue, which indicates that discovery has been completed. The motion must be brought no sooner than 30 days post note of issue and no later than 120 days after the filing of the note of issue. It is important to be familiar with the local court's rule of timeliness of a motion in the event that it may be substantially less than 120 days post Note of Issue.
The following cases are instructive and helpful in both the making and defense of summary judgment motions:
CASE: Armella v. Olson, 2015 N.Y. App. Div. LEXIS 9473 (N.Y. App. Div. 4th Dep't Dec. 23, 2015)
The plaintiff opposed the motion only with respect to the permanent consequential limitation of use and the significant limitation of use categories of serious injury alleged in the complaint, as amplified by the bill of particulars, and abandoned all of his claims with respect to the other categories of serious injury. The plaintiff defeated summary judgment by submitting the affidavit of his treating physician who reviewed plaintiff's cervical MRI. The physician opined that the plaintiff sustained a cervical whiplash superimposed on a degenerative cervical spine and at least two levels of cervical herniation. His physical examination of plaintiff revealed muscle spasms, which constituted objective evidence of injury including plaintiff's range of motion being limited to a moderate or marked degree. The physician further opined that, given plaintiff's absence of any neck pain, stiffness, or radiculopathy prior to the accident, it[the accident? What is it?] was a substantial factor in causing previously asymptomatic degenerative conditions in plaintiff's spine to become symptomatic and in causing plaintiff's neck pain, stiffness, spasms, and restricted range of motion. The Court ruled that it is well settled that the aggravation of an asymptomatic condition can constitute a serious injury.
- PRACTICE POINTER: The key pointer is that the plaintiff brought forth medical proof in admissible form that injuries were objective, which satisfied one of the categories of the serious injury statute creating an issue of fact, resulting in the denial of the motion.
CASE: Walker v. Whitney, 132 A.D.3d 478 (N.Y. App. Div. 1st Dep't 2015)
The defendants in this case met their burden by submitting the affirmed reports of an orthopedist and neurologist who found full range of motion in all parts. They also submitted a report of a radiologist who found that the MRI films showed degenerative disc disease in the spine, mild acromioclavicular (AC) joint osteoarthritis in the shoulder, and no evidence of causally related injury. The plaintiff submitted no admissible medical evidence in support of his claim of serious injury to his cervical and lumbar spine. The records did not become admissible merely because defendants' experts reviewed them.
The only admissible evidence submitted by plaintiff was an affirmation from plaintiff's orthopedic surgeon, who last examined plaintiff shortly after the arthroscopic procedure. He indicated that following surgery, plaintiff had a "decreased range of motion in his left shoulder," but did not provide measurements of the actual ranges of motion or a normal value for comparison. Plaintiff also did not provide evidentiary support for his conclusory statement that plaintiff's shoulder condition was caused by the accident, nor did he address the opinions of defendants' experts that any shoulder injury was due to ongoing pathology and degenerative changes.
The surgeon's statement did not address the conclusions by defendants' doctors that, as of 2012, plaintiff had regained a full range of motion in his left shoulder, which is relevant to the claim of permanent injury.
- PRACTICE POINTER: This case should be a warning to all practitioners to make sure not only that their proof is admissible to meet their burden, but also, once that hurdle is met, the evidence must be sufficient to establish an issue of fact as to whether the claimant had an injury that meets one of the categories of serious injury under the statute. The fact that the plaintiff had a limited range of motion after surgery did not satisfy his burden in the absence of evidence that rebutted the defense physician's finding of full range of motion subsequent to that examination. In addition, the plaintiff's proof failed to establish causation of the injury in opposition to defendant's proof, which showed that the symptoms did not arise from injuries caused by the underlying accident.
CASE: Smith v. Roberts, 131 A.D.3d 423 (N.Y. App. Div. 1st Dep't 2015)
The defendants met their burden on the 90/180-day category via plaintiff's testimony that he missed three days of work following the accident, even though plaintiff subsequently missed approximately a year of work following surgery that was conducted several months after the accident. The timing of the surgery and missed work did not meet the 90/180-day category for serious injury.
- PRACTICE POINTER: The key concept here is to ensure proper pleading because, given the surgery, there should have been other categories where plaintiff could have established a serious injury. Here, it would appear that plaintiff was unduly confident in the missed time from work and overlooked the requirement that the 90 days of loss of activity must occur within the first 180 days post-accident to qualify under that category.
CASE: Cross v. Labombard, 127 A.D.3d 1355 (N.Y. App. Div. 3d Dep't 2015)
The procedural history is convoluted as the plaintiff moved for summary judgment on liability and the defendant cross-moved for summary judgment for failure to have sustained a "serious injury." The Court denied plaintiff's motion and partially granted defendant's cross motion, but concluded that summary judgment was not warranted as to a number of plaintiff's claims of "serious injury." The defendant appealed the decision.
The defendant met his initial burden as to plaintiff's cervical spine and left shoulder injuries by submitting the affidavit and report of a physician who conducted an independent medical examination of the plaintiff. The physician concluded that plaintiff's injuries were mild and related to a 2002 snowmobiling accident, a 2003 spinal fusion surgery and a one-vehicle accident that occurred in January 2010 (about two weeks after the subject accident). In response, plaintiff submitted the affidavit and records of a treating orthopedic surgeon, who provided a thorough and qualitative assessment of the current condition of plaintiff's neck and shoulder, and how these parts of her body were limited from otherwise normal use. He sufficiently distinguished the current symptoms from those attributable to the 2002 accident and related surgery by noting that plaintiff had returned to her normal daily activities without pain in the neck and shoulder for several years following the earlier accident, but she currently suffered from pain in those areas that prevented her from performing many typical daily functions.
As for distinguishing the January 2010 accident, the surgeon opined that the force of that accident would have propelled plaintiff in a different direction, such that she would have been less likely to receive the type of injuries that would be sustained in a forceful rear-impact collision, such as the December 2009 accident. The surgeon also noted that she complained of neck and shoulder pain during her visits to a chiropractor between the two accidents. The chiropractic records from those two visits, however, do not contain any quantitative or qualitative testing results; they only include information about plaintiff's subjective complaints of pain.
It also appears that the doctor did not have all of the accurate or necessary information about the two accidents to determine the true mechanisms of injury, such that he could validly conclude that the injuries from the December 2009 accident caused the limitations regardless of any injuries that might have been caused by the January 2010 accident. He described the January 2010 accident as lateral in nature, due to her vehicle striking a guardrail. According to other records, however, plaintiff had described the accident as more severe, in that her car was up on two wheels, almost flipped over, dragged along the guardrail to the extent that portions of the undercarriage were ripped away, and resulted in the vehicle being totaled. Considering the other record evidence and the fact that the doctor relied on incomplete or inaccurate information, he did not have a sufficient basis for reaching his conclusion that plaintiff's injuries were causally related to the December 2009 accident rather than the January 2010 accident. Hence, summary judgment based on significant limitation was properly granted but there is another category remaining.
The Court properly found a question of fact regarding the significant disfigurement category as to plaintiffs' surgical scars on her left shoulder. A scar falls within this category if a reasonable person would deem it unattractive or objectionable, or feel that it could subject the injured person to pity or scorn. The defense doctors opined that the one-half-inch and three-inch scars were not readily visible and did not constitute a significant disfigurement. However, plaintiff's doctor disagreed. The plaintiff averred that the location of the scars was uncomfortable because straps from dresses, swimsuits and bras rubbed in that area. If she were to wear clothing that exposed her shoulders, the scars would be visible, at least to some extent. She also noted, as supported by photographs, that the scars were different in color from the surrounding skin and that one scar was slightly puckered. While the photographs in the record are not of great quality, the evidence was sufficient to raise a question of fact on the significant disfigurement category.
As to the 90/180-day category, the Court correctly determined that defendant failed to meet his initial burden as to the plaintiff. Defendant relied on the lack of outright restrictions imposed by medical professionals in the medical records, but ignored deposition testimony by plaintiff that she could not perform many daily tasks or was restricted in her abilities, as well as evidence that she was told by medical professionals to limit certain tasks or engage in tasks only as able to do so. With defendant having failed to meet his burden, the court properly denied that aspect of the cross motion without even having to consider plaintiff's proof in opposition.
CASE: Johnson v. American Transp. Corp., 2015 N.Y. Misc. LEXIS 4646 (N.Y. Sup. Ct. Dec. 17, 2015)
- PRACTICE POINTER: The analysis used by the Court is an excellent explanation of the standard the Courts will apply to several categories of "serious injury." This is especially true for the significant disfigurement category. It is also important to review and understand the analysis regarding both prior and subsequent injuries and the proof necessary to either establish or rebut the existence of a "serious injury" arising from the particular accident which is the basis for the lawsuit.
The plaintiff alleged that he sustained a herniated disc at level L5/SI, lumbar radiculopathy, disc bulges at levels Tl 2 through SI, lumbar myofascitis, left shoulder derangement, and exacerbation of a pre-existing degenerative disc condition. Plaintiff further alleges that as a result of the injuries he sustained in the subject collision, he was confined to his bed and home from December 13, 2012, until April 10, 2013.
In support of the motion, the defendants submitted copies of the pleadings, the plaintiff's deposition transcript, the uncertified medical records of the plaintiff regarding the injuries at issue, and the sworn medical reports of three defense IMEs. One of the doctors performed an independent radiological review of the magnetic resonance images films taken of the plaintiff's left shoulder and lumbar spine on February 14, 2013 and February 3, 2103, respectively. Another doctor conducted an independent orthopedic examination of the plaintiff on November 4, 2014. Lastly, the third IME doctor conducted an independent neurological examination of the plaintiff on December 4, 2014.
The defendant's examining orthopedist stated in his medical report that an examination of the plaintiff revealed that he had full range of motion in his spine and left shoulder; that there was no tenderness or spasm upon palpitation of the para spinal muscles; that there was no atrophy, crepitus or tenderness of the acromioclavicular ("AC") joint in the left shoulder; that the muscle strength of the lower and upper extremities was 5/5; and that the straight leg-raising test and impingement signs were negative. Although the doctor did note significant range-of-motion limitations in the plaintiff's right shoulder, the plaintiff failed to allege any injuries to his right shoulder in his bill of particulars; therefore, it cannot be said that the observed limitations in the plaintiff's right shoulder were causally related.
Moreover, another defense IME doctor opined that the injuries to the plaintiff's lumbar spine and left shoulder were resolved and that the plaintiff was capable of performing his normal activities of daily living. Likewise, the defendant's examining neurologist, in his examination of the plaintiff, found that he had full range of motion in his spine, that there was no active inflammation or swelling in the left shoulder, that the straight leg-raising test was "unlimited at 90 degrees," that there were no myelopathic signs, and that the plaintiff's gait and coordination were within normal limits with no evidence of foot drop or hip tilt.
Lastly, the radiologist retained by defendant states in her medical report that a review of the MRI studies of the plaintiff's lumbar spine and left shoulder revealed the presence of long-standing degenerative joint disease and disc desiccation, which were pre-existing to the subject accident, and that there was no evidence of a recent or acute post-traumatic abnormality or change in either the plaintiff's lumbar spine or left shoulder causally related to the subject accident.
- PRACTICE POINTER: The plaintiff had difficulty rebutting all the medical evidence in favor of the motion. The plaintiff's subjective complaints of pain were insufficient to establish the existence of a serious injury. Moreover, the plaintiff's self-serving affidavit is insufficient to raise a triable issue of fact as to whether he sustained a serious injury that was causally related to the subject accident. Although the plaintiff has submitted the affirmed medical report of his treating physician showing that he sustained range of motion limitations in his spine and left shoulder contemporaneous with the subject accident, he failed to submit any objective admissible medical proof demonstrating the existence of such limitations based upon a recent examination.
- One of plaintiff's doctor's reports impermissibly relies upon other doctor's unaffirmed reports in reaching his conclusions. Thus, it is without probative value as to whether the plaintiff sustained a serious injury within the meaning of the Insurance Law due to the subject collision. Moreover, even though there was a radiologist report that showed a herniated disc, it failed to meet plaintiff's burden because the mere existence of a herniated or bulging disc is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration.
- While this is a trial-level decision, it is important to note that the concepts and analysis contained therein will be applied by the Appellate Division. In this case, defendants did an excellent job of both obtaining and ensuring the evidence was admissible to meet their burden, while plaintiff did not. Given the time plaintiff claimed to have spent in bed, the plaintiff failed to capitalize on this favorable fact by submitting more proof based on that allegation to establish a 90/180 claim.
CASE: Murray v. Helderberg Ambulance Squad, Inc., 133 A.D.3d 1001 (N.Y. App. Div. 3d Dep't 2015)
The plaintiff did not seek treatment for her purported injuries for more than 11 months, and her expert failed to discuss or distinguish her relevant pre-accident and post-accident incidents and injuries. As such, the motion for summary judgment was granted. The facts of this case are compelling. The plaintiff had sought treatment about a year before the accident for soreness in her left shoulder. Following the accident, she continued her normal active lifestyle for about a year until November 2010, when she visited a doctor with complaints of pain in her left shoulder. This visit occurred shortly after a separate incident in October 2010, during which she injured her left arm attempting to move a 25-pound box.
A second post-accident incident occurred in March 2011 when a snowboarder collided with her, causing her to fall on her left side and sustain shoulder pain and numbness. The defendants met their burden of establishing entitlement to summary judgment with an IME doctor's sworn report. In opposition to defendants' motion, plaintiff's proof included a brief affirmation from Benjamin Chang, a general and vascular surgeon who began treating the plaintiff two years after the accident and who diagnosed thoracic outlet syndrome for which he later performed two surgeries Dr. Chang opined that plaintiff's thoracic outlet syndrome resulted from the November 2009 motor vehicle accident. However, he did not address plaintiff's pre-accident left shoulder problems or the impact of the two post-accident incidents in which plaintiff injured her left shoulder and/or neck. The November 2009 accident was not distinguished from or put in medical context with the other relevant injuries, and Chang's opinion regarding causation rested upon plaintiff's subjective complaints. Upon this record, the plaintiff failed to establish a triable issue of fact regarding a serious injury caused by the motor vehicle accident.
- PRACTICE POINTER: Even though the evidence was sworn and addressed causation, the proof was defective on its face for failure to perform the proper analysis. Some might argue that an issue of fact was created and the defects in the proof could be the subject or the trier of fact, but there is no indication that the argument was made.
CASE: Johnson v. Salaj, 130 A.D.3d 502 (N.Y. App. Div. 1st Dep't 2015)
Plaintiff alleged a "serious injury" that required arthroscopic surgery to her left knee from an auto accident. Defendants moved for summary judgment on the basis that medical affirmations submitted into evidence showed that plaintiff did not suffer an injury that resulted in permanent or significant limitations in use of her left knee and, even if the affirmations did show a limitation, it was caused by pre-existing conditions rather than the accident.
The First Department held that the defendants' failed to meet their prima facie burden because the medical affirmations submitted by the defendants actually showed conflicting expert reports creating a question of fact as to the range of motion in plaintiff's knee and the cause of the plaintiff's anterior cruciate ligament tear. This evidence failed to demonstrate as a matter of law that the plaintiff's knee injury was caused by a pre-existing condition. Because defendants submitted conflicting expert testimony within their own evidence, the burden never shifted to the plaintiff to oppose the claim that the cause of her injury was pre-existing and summary judgment failed.
- PRACTICE POINTER: It is paramount to ensure that the argument for summary judgment is based on consistent evidence to meet the initial burden of the prima facie case so as to not incur substantial costs of litigation over the "serious injury" issue needlessly.
CASE: Streeter v. Stanley, 128 A.D.3d 477 (N.Y. App. Div. 1st Dep't 2015)
Like Johnson, this plaintiff alleged a "serious injury" to her left knee. Defendants met their initial burden through evidence of an affirmed report of an orthopedist who found no objective evidence of injury and a full range of motion in plaintiff's left knee. Plaintiff opposed the motion based on a report from her own medical expert who, upon examination, noted limited range of motion in the plaintiff's left knee.
Defendants attempted to rebut this objection based on the fact that the plaintiff's expert did not examine the plaintiff until three years after the accident, giving to her alleged "serious injury." The First Department held that "there is no requirement that, to defeat summary judgment, a plaintiff must show quantitative measurements suggesting serious injury that are recorded contemporaneous to the accident." Id. at 477. The court further held that "some contemporaneous report of a plaintiff's condition may be necessary to establish causation," but the defendants in this case failed to raise causation in their prima facie showing. Id.
- PRACTICE POINTER: A plaintiff can defeat a motion for summary judgment with objective findings that are not contemporaneous with the accident giving rise to her injury. If contemporaneous findings are an issue in the plaintiff's evidence, the defense needs to address this through a causation argument in its prima facie showing or risk losing the entire motion. This is another case that highlights the need for a thorough analysis of the evidence before deciding to move forward with a motion for summary judgment on the basis of a lack of "serious injury."
CASE: Clark v. Boorman, 132 A.D.3d 1323 (N.Y. App. Div. 4th Dep't 2015)
The plaintiff successfully moved for summary judgment on the issue that plaintiff suffered a "serious injury" pursuant to Insurance Law 5102(d) by way of the significant limitation of use of a body function or system category of the statute. Plaintiff submitted an affidavit of his own medical expert who found that plaintiff had multiple herniated discs based on a review of MRI reports. Defendants argued that this alone was not enough to establish a "serious injury" by way of the significant limitation of use of a body function or system category of the statute.
The court held, "[i]t is well established that proof of a herniated disc, without additional objective evidence, is not sufficient to establish a serious injury." Id. at 1323. However, plaintiff also submitted additional evidence of certified treatment records of his chiropractor and a report by a physician selected by the defendants to complete an IME on the plaintiff two years after the accident that showed significant limitations in range of motion in both the plaintiff's cervical and lumbar spine. The Fourth Department held that, by submitting evidence on range of motion limitations in addition to the evidence of the herniated disc, plaintiff successfully established the extent and duration of his limitation. Id.
- PRACTICE POINTER: Evidence of a herniated disc without additional evidence will not qualify as a "serious injury." Rather, the plaintiff must produce additional evidence supporting that the herniated disc falls into the significant limitation of use of a body function or system category of the statute. The easiest way for a plaintiff to do this is to provide additional evidence of limitation in the plaintiff's range of motion in the same area of his spine as the herniated disc.
CASE: Green v. Jones, 133 A.D.3d 472 (N.Y. App. Div. 1st Dep't 2015)
The defendants successfully moved for summary judgment on the basis that the plaintiff did not suffer a "serious injury" to her left shoulder and lumbar spine due to a pre-existing condition argument supported by expert opinions. However, the plaintiff also alleged a "serious injury" to her cervical spine. While defendants' expert radiologist opined that plaintiff's herniated and bulging discs were degenerative and pre-existing to the accident, defendants' own orthopedic expert created a question of fact when he opined that the accident may have exacerbated or aggravated the plaintiff's pre-existing cervical condition.
- PRACTICE POINTER: A defendant's motion for summary judgment must not contain evidence that would create an issue of fact as to whether the plaintiff has suffered a "serious injury." Here, defendants succeeded on their pre-existing argument as to the plaintiff's left shoulder and lumbar spine, but failed to see the flaws in their own expert's testimony as to the plaintiff's cervical spine. Any evidence that a change to the plaintiff's pre-accident condition was caused by the accident will eliminate the possibility of winning the case at the summary judgment phase. Therefore, it is critical that defense practitioners explore all of their own evidence for flaws before making the summary judgment motion.
CASE: Rumford v. Singh, 130 A.D.3d 1002 (N.Y. App. Div. 2d Dep't 2015)
The plaintiff alleged that she suffered a "serious injury" due to a traumatic brain injury. Plaintiff presented the testimony of her neuropsychologist who performed a range of tests to evaluate the plaintiff's cognitive functioning and concluded that plaintiff suffered a concussive brain injury as a result of the accident due to positive results for impairment to memory and concentration.
Defendants moved for judgment as a matter of law at trial, arguing that the psychologist's testimony was not sufficient to establish a "serious injury," but the Supreme Court denied. The Second Department overturned the Supreme Court on appeal finding that "[a]lthough the plaintiff's expert psychologist testified, based upon the results of certain tests, that the plaintiff was suffering from deficits in cognitive functioning, he failed to identify any objective medical evidence to support his conclusion that the plaintiff had suffered a concussive brain injury." Id. at 1004. Moreover, the court held that the psychologist's finding that the neurological condition was causally related to the accident was only speculative.
- PRACTICE POINTER: Conclusory opinions by medical experts finding a "serious injury" fall short of the standard needed to survive summary judgment. Expert opinions must be supported by objective findings. Psychological testing is not objective evidence that will support an expert opinion of a traumatic brain injury.
CASE: Jallow v. Siri, 2015 N.Y. App. Div. LEXIS 8207 (N.Y. App. Div. 1st Dep't 2015)
This 24-year-old plaintiff alleged a "serious injury" to his left knee as the result of an automobile accident with defendants. Defendants successfully met their initial burden of a prima facie case by showing a lack of a permanent consequential and significant limitation of the plaintiff's left knee through an orthopedist report finding a full range of motion in that body part and the affirmed report of a radiologist opining that objective findings on plaintiff's MRI were the result of degenerative conditions. Plaintiff successfully opposed this showing by presenting his own experts' testimony that plaintiff's injuries were a traumatic result of the accident. Furthermore, the court found plaintiff's experts' testimony compelling because it addressed the duration of plaintiff's injuries to show that the injury to his left knee was permanent in nature. Plaintiff's experts pointed out that the plaintiff remained symptomatic after receiving ongoing physical therapy for a year evidenced by plaintiff continuing to take oral analgesics and wearing a knee brace.
- PRACTICE POINTER: Duration of injury is a key factor in the Court's analysis in determining whether plaintiff's evidence creates a question of fact to get past the summary judgment phase in a "serious injury" case. Clear evidence of ongoing symptoms after a significant period of therapy will create a question of fact that plaintiff's injuries are permanent.
CASE: Uribe v. Jimenez, 133 A.D.3d 844 (N.Y. App. Div. 2d Dep't 2015)
The Second Department reversed the Supreme Court's decision to grant summary judgment in favor of the defendant. The Second Department agreed that the defendant met his prima facie burden by showing that the plaintiff did not suffer a "serious injury" to her ribs by submitting non-certified x-rays that revealed no fractures. The court specifically held that "[w]hile these medical records were not certified, the defendant could rely on them in order to demonstrate a lack of serious injury, as they were the records of the plaintiff's treating physicians The court ultimately denied the defendant's motion for summary judgment on the basis that plaintiff submitted competent medical evidence to counter these records creating a question of fact as to whether her ribs were fractured.
- PRACTICE POINTER: The defendants in this case lost their motion but created good case law that can aid defendants in other cases. The same argument can also be used by plaintiffs in opposing the motion if there is evidence in the defendant's proofs of a serious injury having been suffered by their client. The court held that the defendant could rely on non-certified medical records of the plaintiff's treating physicians in order to demonstrate a lack of "serious injury." This loads more admissible evidence into the defense's arsenal to attack a plaintiff's claim of "serious injury." Additionally, it illustrates that courts will give more weight to records from plaintiff's own treating physician that show the absence of a "serious injury."
In conclusion, automobile accidents in New York are no laughing matter where the serious injury threshold is concerned. It takes time, preparation and marshalling of evidence to both make or oppose a summary judgment motion. It is important that defendants ensure that they have met their burden with admissible evidence to show their entitlement to summary judgment. It is also essential that the plaintiffs focus on the proof submitted and tailor their response to refute defendant's arguments with proof in admissible form which clearly shows that a category of injury under insurance law 5102(d) has been met.
Thus, the cases in this article help to answer the question "why so serious?"
Robert Baer was admitted to the New York Bar in 1988. He practiced
in New York for years as an insurance defense attorney for Royal &
SunAlliance USA. He no longer actively practices as he is now a Claims Executive with Arrowpoint Capital. Bob has a long history of developing CLE materials in New York. He is a professor for the Claim & Litigation Management Alliance at the Claims College and has also instructed at the Litigation Management Institute. Nick Franchak, who is assisting Robert, is a seasoned claims professional and an admitted Ohio attorney who was on Law Review at Capital University Law School. Nick recently joined Arrowpoint Capital and is a claims adjuster.