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CPLR §§ 321 land 3212 and Article 51

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 plaintiff’s 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.

Plaintiff claims that as a consequence of the above-described accident, she has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries: 1) significant disfigurement; (Category 3); 2) permanent loss of a body organ, member, function or system; (Category 6); 3) a permanent consequential limitation of use of a body organ or member; (Category 7); 4) a significant limitation of use of a body function or system; (Category 8); 5) 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.(Category 9).

To meet the threshold regarding significant disfigurement, the law is well settled that the test for determining when an injury is a significant disfigurement is whether a reasonable person viewing the plaintiff’s body in its altered state would regard the condition as unattractive, objectionable or as the object of pity or scorn. Small, well-healed scars do not constitute significant disfigurement within the meaning of the no-fault statute. For a permanent loss of a body organ, member, function or system to qualify as a “serious injury” within the meaning of No-Fault Law, the loss must be total.

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 minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the “permanent consequential limitation of use of 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. See id.

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