Published on:

CPLR §§ 321 land 3212 and Article 51…. cont

With respect to plaintiff’s 90/180 claim, defendants rely on the testimony of the plaintiff which indicates there was virtually no diminution in the plaintiff’s ability to work. Plaintiff returned to work nineteen days after the accident with no change in her job duties.

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. In opposition to defendants’ motion, plaintiff contends that defendants have not meet their burden of proof in establishing that plaintiff’s injuries do not meet the definition of any of the nine categories defined as serious in the insurance law. Plaintiff argues that defendants’ independent medical expert, failed to perform a complete set of range of motion testing in all plains of motion on plaintiff’s injured area, specifically that the doctor did not conduct any range of motion testing in the areas of either left or right lumbar rotation and therefore his opinion that plaintiff has a normal range of motion is suspect.

The Court notes that plaintiff denied any history of a prior car accident or injury during her examination with the doctor as she had also done during her examination with Dr. Miller. The Court also notes that his diagnosis was “Cervical Spine sprain/strain-resolved. Thoracic spine sprain/strain-resolved. Lumbar spine sprain/strain-resolved. There is no evidence of a neurological disability as it relates to the accident of record.” Finally, plaintiff argued that “due to the defendants’ failure to meet their required burden of proof, the plaintiff need not submit any evidence in opposition.”

When moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. Within the scope of the movants’ burden, defendants’ medical expert must specify the objective tests upon which the stated medical opinions are based, and when rendering an opinion with respect to the plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part. The Court finds that the report of the previous doctor satisfied said criteria.

The Court finds that plaintiff has failed to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. Even if plaintiff had provided ample proof of her injury, plaintiff’s intervening medical problem and her pre-existing conditions interrupt the chain of causation between the accident and the claimed injury would override plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint.

Additionally, plaintiff’s deposition testimony does not establish that she was unable to perform substantially all of the material acts which constitute her usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury.

Therefore, based upon the foregoing, defendants’ motion dismissing the complaint against them and granting summary judgment is hereby granted.

Contact Information