CPLR §§ 321 land 3212 and Article 51

January 27, 2015,

A New York Personal Injury Lawyer said that, defendants move, pursuant to CPLR §§ 321 land 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting summary judgment to defendants on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendants' motion. The action arises from an auto accident on March 5, 2008, at approximately 5:00 a.m., in which plaintiff, commuting to her job at SUNY-Old Westbury College, was riding a bus owned and operated by defendants when, as the bus entered plaintiff's stop, the bus driver allegedly stopped short and plaintiff slipped on the wet floor of the bus and fell. Plaintiff claims that, as a result of said fall, she injured her lower back, right knee and right ankle. On or about November 24, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint.

The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

It is well settled that the proponent of a motion for summary judgment must make a prima facie 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. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation.

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.

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 plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). 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 plaintiff has not sustained a serious injury, the defendants may rely either on the sworn statements of the defendants' examining physicians or the unsworn reports of the plaintiff's examining physicians. However, unlike the movant's proof, unsworn reports of the plaintiff'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 plaintiff's injury. The Court of Appeals in a 2002 case decision, stated that a plaintiff'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 plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.


To Be Cont....

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Officer DS's memo book were marked for identification

January 25, 2015,


The fact that a common carrier is operated by a governmental entity does not mean it has a lesser responsibility toward the public than one which is under private ownership. In that connection, there is simply no legal basis for imposing the additional burden of proof that plaintiff demonstrate the existence of an "unusually dangerous" condition before she be permitted to recover. Indeed, even if defendant's obligation herein was only to exercise ordinary and reasonable care to persons boarding or disembarking from its buses, the same duty which a carrier has in maintaining approaches and station platforms, the imposition of the added requirement that plaintiff show "unusual danger" dilutes even the lesser ordinary case standard.

A common carrier does not guarantee its passengers against accident or injury. It is required to exercise reasonable care for their safety. Reasonable care means that care which a reasonably prudent carrier of passengers would exercise under the same circumstances, in keeping with the dangers and risks known to the carrier or which it should reasonably have anticipated.

Defendant cites Barnwell v. New York, New Haven and Hartford Railroad Company, 13 A.D.2d 542, for the proposition that a carrier is not obligated to remove snow and ice from the exposed places on the steps of a moving train while it is traveling between many commuter stations. The situation before us, however, concerns a snowfall which occurred on the day preceding the accident. Further, involved here is not a commuter train with exterior steps exposed to falling snow while the carrier is in transit. Thus, the crucial question is whether defendant's failure to clear the stairwell of an accumulation of slush constituted a deviation from the standard of care which a common carrier customarily owes to its passenger.

Consequently, the judgment of the Supreme Court, which, found in favor of defendant Manhattan and Bronx Surface Transit Operating Authority, is reversed on the law and the matter remanded for a new trial.

Officer DS's memo book were marked for identification

January 24, 2015,

The first questions for you to determine are whether the condition of the bus steps at the point where plaintiff fell were such that the common carrier, through its employer, the bus driver, should have reasonably anticipated unusual danger to passengers from its continued use, and, secondly, whether the common carrier, through its bus driver, knew or, in the exercise of reasonable care, should have known of the condition.

In urging reversal of the jury's verdict in favor of defendant, plaintiff contends that the redaction of the observations of the bus steps by the police officer and the dispatcher, made in the regular course of business, was erroneous and prejudicial to plaintiff. She also argues that the court improperly charged that before the jury could find negligence on the part of the defendant, it first had to determine that the steps were unusually dangerous.
Some of the pages of Officer DS's memo book were marked for identification and read to the jury. In addition, the Aided Report and Injury Report prepared by him were admitted into evidence. These reports were clearly made in the regular course of business and were admissible, yet the trial court, while properly allowing the jury to examine these reports, nonetheless excised from the officer's Accident Report the statement that "Aided was passenger on bus. Upon leaving the bus, which was at the bus stop, she fell down three exit steps that had slush on them. Also, the incline of road caused bus to lean excessively." The court also redacted from the officer's memo book the comment that "Bus on incline at Bus Stop causing steps to be steep." The dispatcher's notation that "on inspection of bus, I found steps of stairwell covered with slush. Slush removed and bus returned to service" was similarly redacted.

All of these entries were made in the regular course of business, and it was the duty of both the police officer and the dispatcher to include them in their reports. The references with respect to both the slush present on the steps and the position of the bus were, furthermore, derived from the personal observations of the dispatcher and the police officer and were not hearsay elicited from some unknown informant. Therefore, the court was not warranted in directing that the foregoing statements be redacted. Nor can it be held that any error in redacting them was harmless since the dispute in this case specifically involves the condition of the stairwell, the amount of snow and slush thereon and the degree of defendant's responsibility for the accident. Certainly, there is no question that plaintiff did, in fact, fall on the front steps as she was in the process of disembarking from the bus.

To Be Cont...

After the examination, the patient was put to bed...cont

January 18, 2015,


On the trial of the issue joined the jury returned a special finding that in 1862 the insured fell from a tree, was injured, but not seriously, and that its effects passed away without subsequently affecting her health. The fact that the insured had so fallen was not disclosed to the insurer. It was held that the injury described by the evidence and found by the jury was not a serious one, within the meaning of the contract, and that the plaintiff was entitled to recover. In discussing the case, the meaning of the term ‘serious bodily injury,’ when used in life policies, was discussed. The justice, speaking for the supreme court, said: ‘On the first branch of the case, the court said to the jury that if the effects of the fall were temporary and had entirely passed away before the application was taken, and if it did not affect the insured’s health or shorten her life, then the non-disclosure of the fall was no defense to the action. On the other hand, if the effects of the fall were not temporary, and remained when the application was taken, or if the fall affected the general health, or was so serious that it might affect the health or shorten life, then the non-disclosure would defeat recovery, although the failure to mention the fall was not intentional or fraudulent. It is insisted by counsel for the defendant that, if the injury was considered serious at the time, it is one which must be mentioned in reply to the interrogatory, and that whether any further inquiry is expedient on the subject of its permanent influence on the health is for the insurer to determine before making insurance. But there are grave and obvious difficulties in this construction. The accidents resulting in personal injury, which at the moment are considered by the parties serious, are so very numerous that it would be almost impossible for a person engaged in active life to recall them at the age of forty or fifty years; and, if the failure to mention all such injuries must invalidate the policy, very few would be sustained, where thorough inquiry is made into the history of the party whose life is the subject of insurance. There is, besides, the question of what is to be considered a serious injury at the time. If the party gets over the injury completely, without leaving any ill consequences in a few days, it is clear that the serious aspect of the case was not a true one. Is it necessary to state the injury and explain the mistake to meet the requirements of the policy? On the other hand, when the question arises, as in this case, on a trial, the jury, and not the insurer, must decide whether the injury was serious or not. In deciding this are they to reject the evidence of the ultimate effect of the injury on the party's health, longevity, strength, and other similar considerations? This would be to leave out of view the essential purpose of the inquiry, and the very matters which would throw most light on the nature of the injury, with reference to its influence on the insurable character of the life proposed. Looking, then, to the purpose for which the information is sought by the question, and to the difficulty of answering whether an injury was serious in any other manner than by reference to its permanent or temporary influence on the health, strength, and longevity of the party, we are of opinion that the court did not err in the criterion by which it directed the jury to decide the interrogatory propounded to them.’

The words ‘hurt’ and ‘would,’ as used in the application, mean an injury to the body causing an impairment of health or strength, or rendering the person more liable to contract disease, or less able to resist its effects. No such medical consequences followed from the hurt sustained by the insured. A cut on the face, finger, or on any part of the body from which blood flows, though healing in a few days, and leaving no evil consequences, is a hurt or wound, but not within the meaning of the contract under consideration. There being no evidence tending to sustain the findings upon which the conclusion of law is based, the judgment should be reversed, and a new trial granted, with costs to abide event. All concur.

After the examination, the patient was put to bed...cont

January 16, 2015,

On the evening of February 21, 1884, the insured took at his own house a lesson in fencing, with foils. His body was protected by a thickly-padded buckskin jacket, fitting closely and high about his neck, and his face was shielded by a visor, which were specially designed for the protection of persons engaged in this exercise. At the end of the exercise, he spat, as found. ‘a little blood,’ and immediately called his family physician, who, after an examination, expressed the opinion that his throat had been hit by the button of the foil, though no external mark or evidence of injury could be found. The insured was not conscious of having been hit, and was quite confident that he had not been. The physician made a careful examination, but found no evidence that the blood came from the throat or lungs. After the examination, the patient was put to bed, and treated in the manner, and for the time, described in the eighth finding of fact. No other hemorrhage occurred. March 2, 1884, his throat was examined by a specialist, who testified that, by the use of a powerful light and mirrors, he discovered the injury, which he described in the language used in the eighth finding. All the evidence descriptive of the injury and its effects was given by, the attending physician, and Jarvis, the specialist, who were called by the defendant, and by the plaintiff, called in her own behalf. He testified that he had been the insured's family physician for 10 or 12 years prior to May, 1885. After having described the injury and its effects, he testified: ‘I was his attending physician for some time after this, [the accident,] until he moved away from that part of the city, in May, 1885.

September 14, 1866, the Mutual Life Insurance Company insured the life of the insured. The application, which was a part of the contract, and its statements, warranties, contained this question and answer: ‘Question. Has the party ever met with any accidental or serious personal injury? If so, what was it? Answer. No.’ The insured died in 1869; and in the action on the policy the jury returned a special finding that in 1862 the insured fell from a tree, was injured in consequence thereof, was sick for some time, but that she recovered, and that the injury had no permanent influence on her health. The fact that the insured had fallen, and had been somewhat injured, was not disclosed to the insurer. It was held that the injury was not, within the meaning of the contract, a serious one. At about the same time the Union Mutual Life Insurance Company of Maine insured the same life. This application was also a part of the contract, and its statements, warranties. It contained this question and answer: ‘Question. Has the party ever had any serious illness, local disease, or personal injury? If so, of what nature, and at what age? Answer. No.’ The accident which had happened to the insured was not disclosed to the insurer.

The issuer in this case is whether the Insurance Company is liable.


To Be Cont...

After the examination, the patient was put to bed

January 14, 2015,

In an application for insurance, the applicant agreed that ‘any untrue or fraudulent statement by me, or any concealment of facts by me, shall forfeit and cancel all rights' under the contract. To the question whether he had ‘received any wound, hurt, or serious bodily injury,’ he answered: ‘No.’ In an action on the policy, it appeared that about a year prior to the application he had, while fencing, received a blow upon his throat by a foil; that in a few seconds thereafter he raised a little blood; that the force of the blow produced an abrasion, wound, or hurt on the inside of the windpipe, and that shortly thereafter he was confined to his bed for the greater part of three days, and during that time was attended by a physician; and that no evil consequences resulted from the injury. Held, that a finding that the injury was ‘serious,’ or that it was a ‘hurt’ or ‘wound,’ within the meaning of the contract, was not warranted by the evidence, and that it was error to dismiss the complaint.

A New York Personal Injury Lawyer said that, plaintiff became a member of defendant's life department, and received two certificates, by each of which the defendant promised to pay, on proof of his death during the continuance of the certificate, $5,000 to the insured's wife, the plaintiff, from the benefit fund of the life department. Each certificate contains the following provisions: ‘In consideration of the representations and agreements made in the application here for, and which is a part of this contract, and of each of the statements made therein, which every person accepting, or acquiring any interest in, this contract, hereby adopts as his own, admits to be material, and warrants to be full and true, and to be the only statements upon which this contract is made.

A New York Wrongful Death Lawyer said that, September 19, 1885, the insured died; and this action was brought to recover the amounts insured by the certificates, and was defended at the trial on the sole ground that the answer to the question above quoted was untrue. The issue was tried before the court without a jury, which found as facts that February 21, 1884, the insured received a ‘wound,’ (fifth finding,) a ‘hurt,’ (sixth finding,) and a ‘serious bodily injury,’ (seventh finding.) The eighth finding of fact described with particularity the wound, hurt, and serious bodily injury found in the fifth, sixth, and seventh findings, and is as follows: ‘Eighth. That prior to the making and delivery of the said application, and on or about the 21st day of February, 1884, the said plaintiff while engaged in fencing, did receive a blow from a foil on the throat, in the neighborhood of or upon the Adam's-apple; that in a few seconds thereafter he raised a little blood; that said blow produced an extravasation of the submucous membrane, just over the cricoid cartilage, in the posterior part of the throat, almost opposite or behind, but a little below, the Adam's-apple; that the force of said blow produced an abrasion, wound, or hurt on the inside of the windpipe; that shortly thereafter the said he was confined to his bed the whole or the greater part of three days, and during that time was attended by a physician, and was by him treated with the same treatment that he gave persons who have the complaint of spitting of blood, but I find that the medical treatment was not for the complaint of spitting of blood.’

In the ninth finding, the court found that the insured concealed from the defendant the injury described in the fifth, sixth, seventh, and eighth findings, and, as a conclusion of law, decided that the plaintiff, by reason of the answer given, was not entitled to recover. The plaintiff excepted to the fifth, sixth, seventh, and ninth findings of fact, and to this sentence, contained in the eighth finding: ‘That the force of said blow produced an abrasion, wound, or hurt on the inside of the windpipe,’ and now insists that they are without any evidence tending to sustain them, and are reviewable in this court as questions of law.


To Be Cont...

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Insurance Law § 5102 (d...cont

January 12, 2015,

In reply, defendants argue, among other things, that the opposition by plaintiff fails to prove by admissible objective evidence that she suffered a "serious injury". Defendants also assert that plaintiff failed to rebut the doctor’s findings that the cervical disc pathology alleged by plaintiff is degenerative in nature and pre-existed the accident.

Based upon the record before it, the court finds that plaintiff's submissions in opposition, failed to rebut defendants' prima facie showing that she did not sustain a serious injury as a result of the May 15, 2003 accident. The court notes that although defendants' radiologist stated that the MRI films taken of plaintiff's cervical spine showed degenerative disc diseases which he opined pre-existed the subject accident, plaintiff's treating doctor failed to address such findings in his report.

Further, although defendants' experts noted that in 1999 plaintiff had a back fusion done for a compensation injury and that plaintiff had a prior disability and was not working at the time of the accident, plaintiff's doctor failed to offer any evidence to show that the injury plaintiff sustained was caused by the subject accident rather than of her pre-existing condition. Nor has he even indicated that he was aware of plaintiff's medical condition prior to the accident that gave rise to her present action. When a plaintiff's treating physician fails to address the significance, or lack thereof, of a prior accident, the physician's conclusions causally linking plaintiff's current limitations to the subject accident are speculative and are not sufficient to rebut defendant's prima facie showing of "lack of serious injury". Moreover, where plaintiff's treating doctor, apparently unaware of pre-existing injuries, does not address them, plaintiff's medical proof is insufficient. Further, where there is a pre-existing injury that a defendant has established is relevant to the injury in litigation, the failure of plaintiff's expert "to indicate an awareness of the condition" can lead to the conclusion that the expert's opinion on causation is fatally flawed even within the context of a motion for summary judgment. Here, plaintiff's medical proof is insufficient because there is no objective basis for concluding that plaintiff's alleged injuries resulted from the subject accident and not the prior car accident.

Moreover, although plaintiff's doctor opined that her injuries are permanent and that plaintiff still demonstrates significant restriction of motion in her cervical spine, he has failed to set forth the objective tests he performed to support his conclusion that plaintiff's injuries are permanent in nature and that plaintiff suffers from significant restriction of motion in plaintiff's cervical spine. "It is required that an expert's affidavit identify the specific objective findings that serve as a predicate for the opinion rendered and also that an explanation be provided establishing a sufficient causal relationship between that objective finding and the bike injury, condition or limitation giving rise to the claim of serious injury, as well as between the injury and the accident itself.".

In the absence of objective evidence establishing causation, plaintiff's submissions are insufficient to demonstrate "serious injury" under consequential limitation of use or significant limitation of use categories.

Additionally, to the extent that the doctor’s affidavit properly relies on his own examination findings, there is a clear gap in treatment that is not explained. The doctor fails to offer an explanation for the more than two and a half year gap between his examination of plaintiff on May 11, 2005 and his most recent examination of the plaintiff on November 28, 2007, subsequent to the summary judgment motion. Further, the medical doctor failed to set forth the treatment, if any, that plaintiff received for her alleged injuries during that time.

Finally, plaintiff's own self-serving affidavit is insufficient to prove that she sustained a medically determined injury or impairment which prevented her from performing all the material acts which constituted her usual customary activities for 90 of the 180 days immediately following the accident. Based on the record before the court, plaintiff was disabled at the time of the accident, she had spinal surgery done in May 1999 and suffered from chronic back pain.
Accordingly, based on the foregoing, plaintiff has failed to raise an issue of fact as to whether she sustained a serious injury as set forth in Insurance Law 5102 (d), as a result of the May 15, 2003 accident and as such defendants' motion and cross-motion for summary judgment dismissing the plaintiff's complaint are granted.

Insurance Law § 5102 (d...cont

January 10, 2015,

Plaintiff claims that she sustained a "serious injury," as defined by Insurance Law § 5102 (d), in that she suffered a permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; and was unable to attend to her usual activities for a period in excess of 90 days during the first 180 days following the bike accident.

In order to establish that she suffered a permanent consequential limitation of use of a body organ or member, and/or a significant limitation of use of a body function or system, plaintiff must show more than "a mild, minor or slight limitation of use" and is required to provide objective evidence in addition to opinions of the extent or degree of the limitation and its duration. Resolution of the issue of whether a serious injury was sustained involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part.

In opposition to defendants' motions, plaintiff proffers the affidavit of treating doctor, as well as her own affidavit. In his report he stated that he first examined plaintiff on May 28, 2003. He noted plaintiff's complaints of neck pain, radiating into her right arm along with upper thoracic pain. His examination revealed that plaintiff had sustained "significant cervical and thoracic strain with possibility of concussion and evidence of cervical radiculopathy ruling out a herniated disc". He stated, that he treated plaintiff on May 11, 2005, at which time an electromyography was performed which revealed: "mild right C6 radicular dysfunction and bilateral median nerve entrapments at the wrists". The doctor noted that plaintiff's cervical MRI film revealed mild disc herniation at C5-C6 and central disc protrusion at C2-C3 with a disc bulge at C3-C4. He stated that he re-examined the plaintiff on November 28, 2007, and found diffuse tightness across the upper back musculature. He opined that plaintiff's injuries were caused by the accident on "May 18, 2003". He further opined that plaintiff's injuries are permanent in nature. He also stated that plaintiff still demonstrates medically significant restriction of motion in her cervical spine and has not improved beyond her present condition.
There were no dog bite involved.

In her own affidavit, plaintiff asserts that three years after the date of the accident, she continues to experience upper back pain, lower back pain and right arm pain. Plaintiff states that over three years after the accident, she was unable to engage in pre-accident activities such as cleaning, washing dishes, writing letters and sitting for long periods. She further avers that she received physical therapy twice per week for two months after the accident and "then again from November 2005 through January 2006". Plaintiff also submitted two unaffirmed radiology reports dated November 4, 2002 and August 4, 2004 on MRI studies taken of plaintiff's lumbar spine and cervical spinal injury.


To Be Cont...

Insurance Law § 5102 (d

January 7, 2015,

A Kings Car Accident Lawyer said that, this is an action to recover damages for personal injury allegedly sustained by plaintiff, as a result of a motor vehicle collision that occurred on May 15, 2003, at the intersection of Driggs Avenue and Grand Street in Brooklyn, New York. Plaintiff was a passenger in a motor vehicle owned and operated by defendant which was struck by a motor vehicle owned by defendants. Plaintiff alleges that defendants' negligence proximately caused her injuries. In her bill of particulars, plaintiff alleges that she sustained, inter alia, central disc protusion C2-C3, central disc herniations C5-C6, disc bulge C3-C4, right cubital tunnel syndrome, lower back pain, ulnar neuropathy and right and left rib contusion.

A Kings Auto Accident Lawyer said that, defendants move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as that term is defined by Insurance Law § 5102 (d). The other defendant cross-moves for an order requesting the same relief and adopts the facts and arguments advanced by the defendants. In their motion, defendants assert that plaintiff did not sustain a "serious injury" as the term is defined by Insurance Law 5102 (d) and, therefore, her claims should be dismissed.

The issue in this case is whether plaintiff sustained serious injury as a result of the auto accident.
In a personal injury action seeking damages for injuries allegedly sustained in a bike accident, the plaintiff must, as a threshold matter, establish that he or she has sustained a "serious injury" as defined in Insurance Law § 5102 (d). Accordingly, to succeed on their motion for summary judgment, defendants must meet an initial burden of showing that plaintiff did not, as a result of the accident at issue, sustain a serious injury as defined by Insurance Law § 5102. Defendants may sustain the initial burden by submitting an affidavit and/or affirmation of a medical expert who examined plaintiff and "concluded that no objective findings support the plaintiff's claim" of serious injury. Once a defendant has prima facie established that the plaintiff did not sustain a serious injury, the burden shifts to plaintiff to come forward with admissible proof that raises a triable question of fact. If plaintiff cannot meet this burden, the court will grant summary judgment to defendant.

"The court's function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but merely to determine whether issues of fact exist".
Defendants, by the foregoing submissions, have made a prima facie showing that plaintiff did not sustain a "serious injury," shifting the burden to plaintiff to submit objective evidence that a "serious injury" was sustained and that it was causally related to the May 15, 2003 bike accident.
Accordingly, the burden shifts to plaintiff to come forward with sufficient evidence to raise a triable issue of fact. In order to refute movant's showing and to establish that she sustained a serious injury, plaintiff must submit "objective proof, such as an expert's designation of a numeric percentage of her loss of range of motion,' or an expert's qualitative assessment of her condition, provided that the evaluation has an objective basis and compares her limitations to the normal function, purpose and use of the affected body organ, member, function or system'". Moreover, where there is a pre-existing injury that defendants have established as being relevant to the injury in litigation, plaintiff's expert must present objective evidence distinguishing between the injuries sustained in one accident and those sustained in another, and cite objective evidence to explain the expert's opinion that the plaintiff's pre-existing injuries were resolved prior to the instant accident.


To Be Cont...

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The issue in this case is whether plaintiffs sustained serious injury...cont

January 5, 2015,


The defendant is not required to disprove any category of "serious injury" that has not been pled by the plaintiff. Whether the plaintiff can demonstrate the existence of a compensable "serious injury" depends upon the quality, quantity, and credibility of admissable evidence. Essentially, in order to satisfy the statutory "serious injury" threshold, objective proof of the plaintiff's injury is required.

Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiffs 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.

While a herniated or bulging disc, or the presence of radiculopathy may constitute a "serious injury" within the ambit of Insurance Law §5102(d), a plaintiff is required to provide, inter alia, objective medical evidence, which demonstrates the extent and degree of the alleged physical limitation resulting from the disc injury and its duration. When examining medical evidence offered by a plaintiff on a threshold motion, the court must ensure that the evidence is objective in nature and that a plaintiff's subjective claims as to pain or limitation of motion are sustained by verified objective medical findings. Further, the plaintiff must provide competent medical evidence containing verified objective findings based upon a recent examination wherein the expert must provide an opinion as to the significance of the injury.

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild, or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A claim raised under the "permanent consequential limitation of use or a body organ or member" or "significant limitation of use of a body function or system" categories can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation. In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided: (1) the evaluation has an objective basis; and (2) the evaluation compares the plaintiff's limitation to the normal function, purpose, and use of the affected body organ, member, function, or system.

In applying the foregoing standards and principles to the instant matter the Court finds that Defendant has met his initial burden of establishing a prima facie case that Plaintiffs' injuries do not satisfy the threshold requirements of Insurance Law §5102(d). In response, Plaintiffs have failed to submit sufficient evidence to raise a triable question of fact on the issue. As such, summary judgment in favor of Defendant against Plaintiffs is warranted.

Upon the submission of the affirmed reports of an orthopedist, Defendant has met his initial burden of establishing a prima facie case that Plaintiffs have failed to meet the statutory threshold of a "serious injury" under categories "7" and "8".

According to the report, after reviewing plaintiff’s medical records, he conducted a physical examination on February 1, 2011. His examination found normal ranges of motion in the thoracolumbar spine, right hip, and right ankle. He concluded that there was no evidence of an orthopedic disability.

In opposition, Plaintiffs have submitted their own affidavits, affirmations from treating physicians, and medical reports. There is nothing contained in either Plaintiffs-affidavits that would demonstrate that they have sustained a "serious injury".

According to the doctor’s affirmation after examination of plaintiff on November 7, 2011, range of motion was found to be normal, other than a minor 20% loss of lumbar extension. His impression was that he has lumbar radiculitis, which is likely the source of his pain; and distal right leg/foot pain following contusion. These findings demonstrate that plaintiff’s condition does not meet the "serious injury" threshold. According to the doctors affirmation after examination of Jean on November 7, 2011, range of motion was found to be normal, other than a minor 17% loss of lumbar flexion and a 20% loss of lumbar extension. His impression was that the other plaintiff has a lumbar strain with disc bulges and right knee pain. These findings demonstrate that Jean's condition does not meet the "serious injury" threshold.

Accordingly, Defendant's motion is granted, and Plaintiffs' complaint is dismissed as to Defendant.

The issue in this case is whether plaintiffs sustained serious injury

January 2, 2015,

A Nassau Auto Accident Lawyer said that, defendant, moves pursuant to CPLR §3212 for an order granting summary judgment in his favor, dismissing Plaintiffs' complaint, alleging that the injuries sustained by Plaintiffs', do not satisfy the "serious injury" threshold requirement of Insurance Law §5102(d). This action arises out of a motor vehicle accident that occurred on December 5, 2008. As a result of the accident, plaintiff allegedly sustained serious personal injury, including but not limited to, cervical radiculopathy and lumbosacral radiculopathy.

A Nassau Spinal Iinjury Lawyer said that, the other plaintiff also allegedly sustained serious personal injuries, including but not limited to, disc bulging at L2-3, L3-4, and L4-5; cervical radiculopathy; and lumbosacral radiculopathy.

The issue in this case is whether plaintiffs sustained serious injury as defined under Insurance Law.

In a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact. The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. The primary purpose of a summary judgment motion is issue finding not issue determination, and it should only be granted when there are no triable issues of fact.

Within the context of a summary judgment motion that seeks dismissal of a personal injury action resulting from a motor vehicle accident for the alleged failure of the plaintiff to sustain a "serious injury" within the meaning of Insurance Law §5102(d), the defendant bears the burden of establishing a prima facie case that the plaintiff's injuries do not meet the threshold requirements of the statute. Upon such a showing, it becomes incumbent on the plaintiff to come forward with sufficient evidence, in admissable form, to demonstrate the existence of a question of fact on the issue. The court must then decide whether the plaintiff has established a prima facie case of sustaining a "serious injury".

Insurance Law §5102(d) defines "serious injury" as a personal injury which results in: (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of fetus; (6) permanent loss 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; or (9) 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 (90) days during the one-hundred-eight (180) days immediately following the occurrence of the bicycle injury or impairment.


To Be cont...

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Second Restatement of Law of Torts...cont

December 30, 2014,

The allegations of injury presented to this Court by the facts of the certified question, nonetheless, fall short of this standard. The question itself begs us to assume that an attorney client relationship was "actually undermined," but on the facts given to us, we cannot so conclude. In general, plaintiff complains about the burdens imposed by the conflict of interest created when respondent sued him. The amount of time and costs of rendering adequate counsel were increased, discovery burdens increased, some of which Engel did not or could not, according to the Second Circuit, charge to his client. These do not rise to the level of atypical consequences of a lawyer being sued.

This does not mean that because plaintiff won for his client he cannot show the requisite added grievance. Nor should it suggest that he had to have been disbarred, disciplined, disqualified or dismissed in order to get his malicious prosecution claim to the jury. But here, nothing in the specific facts presented to us gives a basis for concluding that the burden, financial or otherwise, of strategizing around the conflict was substantially beyond that which would be typical of similar litigation.

The claims in the facts presented to us of lost business likewise fail to muster the requisite special injury. These claims are actually tangential to the main claims of an increased work burden due to the conflicts, and are primarily asserted in general rather than specific terms. Even though we can foresee specific, verifiable loss of business providing the necessary grievance, the loss of one client along with vague allegations of reputational loss, given plaintiff’s established practice, are not sufficient. Moreover, there has been no allegation that the consequences, in terms of lost business, have marred, in any specific and meaningful way, plaintiff’s or his law firm's financial opportunities.

To be certain, respondent’s actions in bringing a groundless claim for the purposes of creating a conflict were reprehensible. Cases brought for the primary purpose of interfering with an attorney client relationship or of curtailing another's business opportunities not only waste precious judicial resources, but are also anathema to the justice system itself. Nonetheless, we are constrained by the fact that standards for awarding fees and costs and imposing sanctions are different than those for a claim of malicious prosecution. Under the facts of this certified question, the deleterious consequences strongly desired by them in bringing its action never materialized to the degree necessary to constitute special injury. As a result, we do not assume that the attorney client relationship was "actually undermined" as the certified question suggests, and with this understanding, we answer the certified dog question in the negative.

We note, however, that only the certified question and not the question of summary judgment is before this Court, and we offer no ultimate conclusion as to whether Engel has raised a question of fact to defeat summary judgment. We rely solely on the facts presented by the certified question. Other averred allegations or facts, not before this Court, may have a bearing on this determination. On certified questions, our province is bounded by "questions of New York law which may be determinative". We leave the final resolution of the summary judgment motion to the Second Circuit in light of the legal standard set forth in this Opinion.
Accordingly, construing the question as we do, the certified question should be answered in the negative.