Published on:

Co-defendant did not appear or oppose…cont

Insurance Law § 5104(a) provides that, “when an insured injures someone in a motor vehicle accident, the injured party is subject to the serious injury requirement in the No-Fault Law and cannot sue for noneconomic loss unless the serious injury threshold is met,”.

Insurance Law § 5102(d) defines “serious injury” as: “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system [“permanent loss”]; permanent consequential limitation of use of a body organ or member [“permanent consequential limitation”]; significant limitation of use of a body function or system [“significant limitation”]; 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 or impairment [“90/180-day”].”

Plaintiff provided the defendant with a verified bill of particulars dated February 10, 2009. In paragraph fourteen, plaintiff alleges that her injuries are of a serious nature as defined by the four elements comprising Insurance Law §5102(d); permanent loss, permanent consequential limitation, and significant limitation under the 90/180-day category. In paragraph fifteen, plaintiff alleges, among other things, that she was confined to bed for approximately one month and incapacitated from employment for approximately six months after the accident.

In support of the instant motion, defendant submitted the affirmed reports of a neurologist, an orthopedic surgeon, and a radiologist. The neurologist examined the plaintiff on March 17, 2010 and concluded that plaintiff had an “essentially normal” neurological exam. He offered no specific opinion as to plaintiff’s condition during the relevant 90/180-day period. The orthopedic surgeon examined the plaintiff on March 15, 2010 and concluded that plaintiff had full and painless ranges of motion. He offered the opinion that plaintiff’s prognosis for the date of the accident, September 27, 2005, was excellent and that no permanent residuals or musculoskeletal disability were detected. He offered no specific opinion as to plaintiff’s condition during the relevant 90/180-day period.

On April 16, 2010, the radiologist reviewed plaintiff’s radiological films from a cervical spine MRI examination conducted on October 26, 2005 and a lumbar spine MRI examination conducted on November 8, 2005. He concluded that plaintiff exhibited bulges that were degenerative in nature and not related to the accident but offered no specific opinion as to plaintiff’s condition during the relevant 90/180-day period.

The affirmed reports of the said doctors are silent as to the plaintiff’s condition during the relevant 90/180-day time period. Therefore, defendant has not met its burden because the affirmed medical reports submitted by defendant’s physicians fail to specifically discuss the 90/180-day category of serious injury clearly articulated in the plaintiff’s verified bill of particulars.

Since the defendant failed to meet the prima facie burden, we need not consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact.

For the foregoing reasons, the defendant’s motion to dismiss the complaint pursuant to CPLR § 3212 and Insurance Law § 5102(d) is denied.

Contact Information