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Insurance Law §5102…cont

The term “significant,” as it appears in Insurance Law §5102, has been defined as “something more than a minor limitation of use,” and the term “substantially all” has been construed to mean “that the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment”.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented.

On a motion for summary judgment to dismiss a complaint for failure to state a prima facie case of serious injury as defined by Insurance Law § 5102(d), the initial burden is on the defendant to “present evidence in competent form, showing that plaintiff has no cause of action”. Once the defendant has met the burden, the plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the non-moving party.

Here in the case at bar, the defendants suggest that the reports and findings of the plaintiffs chiropractor, J, her neurologist, K, and her radiologist, L MD, have not established the plaintiff’s prima facie case of a serious physical injury. This Court finds otherwise. While the defendants claim that their examining neurologist, R, found no evidence of an ongoing neurological disorder causally related to the accident and that H, the defendants’ examining expert orthopedist, also concluded that the plaintiff had degenerative changes in her cervical spine not causally related to the accident, neither of the defendants’ experts addressed her claim of a loss of work from November 2008 through May 2009. H noted in his report that “the patient may have sustained a cervical and lumbar strain that should have gone on to a full and maximal resolution”. The plaintiff in her bill of particulars noted she was unable to work at her job in a Hospital in the Bronx from November 14, 2008 until May 4, 2009 as a result of the car accident.

Even were the Court to find that the defendants met their prima facie burden to establish the plaintiff did not sustain a serious physical injury, the evidence proffered by the plaintiffs experts showing herniation and disc bulges to the C5-C6, C6-C7, and L4-L5 with radicuipathy and muscle spasms with the straightening of the cervical lordosis, along with persistent neck and low back pain associated with the accident is sufficient to establish that there are divergent medical opinions from both sides on the question of whether these injuries are causally related to the accident as the plaintiff’s experts claims, or are degenerative changes based on life style as the defendants’ experts claim.

Under the facts and circumstances of the instant case, considered in a light most favorable to the plaintiff, the Court finds that the plaintiff has provided sufficient medical evidence to raise a factual issue which requires resolution by a jury. It is well settled that pain can form the basis of a serious injury. Although the defendants submit expert medical proof to the contrary stating that nothing significant or consequential or permanent was noted and that the plaintiff sustained cervical and lumbarsacral spine sprains now resolved, the Court views the discrepancies between the medical reports and affidavits submitted on behalf of the parties to involve issues of credibility for resolution by the jury.

Accordingly, the defendants’ motion for summary judgment and dismissal of the plaintiff’s action pursuant to CPLR §3212 because the plaintiff has failed to reach the threshold of a serious physical injury as defined in Insurance Law §5104 is denied.

In order to successfully claim damages for the injury suffered from a vehicular accident, the proponent must have a good presentation of evidence supporting his/her case before courts. This will require the coherency of the medical presentation of evidence and also the legal aspect of evidence. Absent of both or either one of these, the case is in danger of dismissal.

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