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On 16 June 2004, a motor vehicle accident occurred where serious injuries were allegedly sustained by plaintiffs. The accident allegedly happened when the vehicle owned and operated by the defendant struck the vehicle operated by one of the plaintiffs, the other plaintiffs riding as passengers.
The complaint contains causes of action which allege that plaintiffs each sustained a “serious injury” as defined in Insurance Law; an action to recover damages.
Insurance Law defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture (broken bone); loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or 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 days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
According to a New York Injury Lawyer, in order to recover under the “permanent loss of use” category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” categories, either a specific percentage of the loss of range of motion muse be ascribed or there must be a sufficient description of the “qualitative nature” of plaintiff’s limitations, with an objective basis, correlating plaintiffs limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.
Is there a prima facie showing of “serious injury”? The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action”. Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.
In support of the motion and relative to plaintiff-driver, defendant submits, inter alia, the pleadings; the plaintiffs’ verified bill of particulars; and the affirmed report of defendant’s examining orthopedist. Westchester County Personal Injury Lawyer said in their bill of particulars, plaintiffs claim that the driver sustained a concussion as well as cervical/lumbar disc bulges and herniations; sustained a limitation of motion and an exacerbation of all pre-existing injuries/conditions; and was confined to her home for two months as a result of the accident. The Court construes these allegations to mean that plaintiff claims a serious injury in the categories of a permanent consequential limitation and a significant limitation.
In support of the motion and relative to plaintiff (1st passenger), defendant submits, inter alia, the pleadings; the plaintiffs’ verified bill of particulars; the affirmed report of defendant’s examining orthopedist; and the affirmed report of defendant’s examining neurologist (for head injury). In their bill of particulars, plaintiffs claim that 1st passenger sustained contusions of the knees; cervical and lumbar disc herniations; and straightening of the cervical lordosis; sustained a limitation of motion and an exacerbation of all preexisting injuries/conditions. The Court construes these allegations to mean that plaintiff claims a serious injury in the categories of a permanent consequential limitation and a significant limitation.
In support of the motion and relative to plaintiff (2nd passenger), defendant submits, inter alia, the pleadings; the plaintiffs’ verified bill of particulars; the affirmed report of defendant’s examining orthopedist; the affirmed report of defendant’s other examining orthopedist; and the affirmed report of defendant’s examining neurologist (for head injury); In their bill of particulars, plaintiffs claim that 2nd passenger sustained a lesion of the humeral head of the right shoulder; cervical and lumbar disc herniations; and a loss of cervical and lumbar lordosis; sustained a limitation of motion and an exacerbation of all pre-existing injuries/conditions; and was confined to his home for one week and to his bed for 2 days as a result of his injuries. A Staten Island Personal Injury Lawyer said the Court construes these allegations to mean that plaintiff claims a serious injury in the categories of a permanent consequential limitation and a significant limitation.
In the reports of the doctors who independently examined the plaintiffs for their alleged injuries, it was in their opinions that there were no serious impairments and that they were all capable of carrying out the normal activities of their daily living without restriction.
The defendant made a prima facie showing that plaintiffs each did not sustain a serious injury. In opposition, two affirmed MRI reports of plaintiffs’ treating radiologist for each of the plaintiffs; the personal affidavit of plaintiffs’ treating chiropractor for each of the plaintiffs; and the plaintiffs’ personal affidavits are submitted, inter alia.
The Court notes that the treating chiropractor’s affidavit is deficient to the extent that he attempts to render a medical diagnosis or prognosis which is beyond the scope of chiropractic practice.
Plaintiffs have provided insufficient medical proof to raise an issue of fact that they each sustained a serious injury under the no-fault. While a disc herniation may constitute a serious injury, each of the radiologist’s MRI reports are not probative for the purposes of demonstrating a serious injury for any of the plaintiffs because they contain no opinion as to, and, additionally, these reports do not establish the extent of the alleged physical limitations resulting from the alleged disc injuries and their duration. The chiropractor’s diagnoses of cervical and lumbar derangements are not explained, defined or specifically connected to plaintiffs’ limitations, and their significance is not delineated; has not provided an adequate explanation for the end of his treatments rendered to plaintiffs sometime in November, 2005, and his most recent re-examination of them on October 4. Plaintiffs’ gaps in treatment were, in essence, cessations of treatment which they have failed to adequately address by way of competent medical proof.
Therefore, the conclusory affidavits of the chiropractor, which were clearly tailored to meet the statutory requirements, are insufficient to establish a “serious injury” for the plaintiffs under the no-fault law. Moreover, plaintiffs’ subjective complaints of pain to their health care providers do not constitute significant injuries within the meaning of the statute.
In conclusion, the proof submitted by the plaintiffs is insufficient to raise a triable issue of fact that they sustained a medically-determined injury or impairment rendering them unable to substantially perform all of their usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The record lacks objective proof of any substantial curtailment of their activities within the relevant time period after the.
Accordingly, plaintiffs’ complaint is dismissed.
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