A Bronx Estate Litigation Lawyer said that, defendants move for summary judgment pursuant to CPLR 3212 and dismissal of the complaint against them, for the failure of the plaintiff to prove that he has sustained a “serious injury,” as that term is defined in section 5102 of the Insurance Law.
The accident underlying this case occurred on December 21, 2004 at approximately 12:45 P.M. at the intersection of E. 188th St. and Cambreleng Avenue in the Bronx, at which time and place the vehicles owned and driven by the plaintiff and defendant collided. The 33-year-old plaintiff, who did not lose consciousness, and was not bleeding, was removed from the scene of the accident by ambulance and taken to St. Barnabas Hospital. At the hospital, he complained of pain in his chest, neck and back, and he stated that, even though he was wearing a seatbelt, his chest hit the steering wheel. X rays were taken of the cervical spine and of the chest, both of which were determined to be negative. Thereafter, he was released the same day.
A Bronx Estate Lawyer said that, on December 30th, nine days post accident; plaintiff came under the care of an internist. The underlying treatment records, and the empirical data contained therein, were provided and reviewed by the defendants’ physicians, but were not submitted to the court. All of the information concerning the substance of plaintiff’s care and treatment is gleaned from the affirmation of the internist, dated April 21, 2008, which was submitted in opposition to defendants’ motion to dismiss. In any event, on plaintiff’s first visit to the internist, the plaintiff reported that after the accident he had ringing in his ears and nausea; and he complained of neck pain radiating down to his shoulders with numbness; periods of dizziness when turning his head; shooting pain in his arms when turning his neck, especially on the left side; and lower back pain which gets worse on physical exertion and which spreads to the right buttocks, right thigh and leg, with a tingling sensation. On that occasion the internist conducted a neurological and physical examination which, with the use of a goniometer, included cervical and lumbar range of motion tests and measurements; and he found that plaintiff “suffered from a limited range of motion of the cervical and lumbar spines,” and diagnosed the plaintiff with “traumatic nerve root injury, plexopathy due to plexus stretching of compression pain by injured muscles, referred nociceptive pain, myofascial pain syndrome with cervical and lumbar spine trigger points and a lumbosacral sprain.” Despite the use of the goniometer, the numerical measurements of the limitations are not set forth anywhere in the plaintiff’s submissions. The internist does state in his affirmation, however, that they were “less than the normal range of motion.”
Based on all of the above, plaintiff was started on a course of aggressive physical therapy (which continued from December 30, 2004 until May 27, 2005), and he was “sent for MRI and other diagnostic testing,” including nerve conduction velocity (EMG/NCV) tests. However, only the results of the MRI, which was conducted on January 17, 2005, are presented to the court on this motion. The MRI testing of plaintiff’s lumbar and cervical spine was conducted by a radiologist, who in an affirmation dated April 15, 2008 states that the plaintiff “suffered a posterior disc herniation at L5-S1 into the epidural fat abutting the interior sac margin and anterior disc bulges into the prevertebral soft tissues at L2-3 and L4-5; and posterior disc bulges at C3-4, C4-5 and C5-6 all of which impinge on the thecal sac.”
In the MRI report, attached to the affirmation dated January 17, 2005, the following additional relevant findings are set forth: a straightening of the lumbar curvature, and a mild loss in the signal intensity of the L2-3, L4-5, and L5-S1 intervertebral discs “which reflect mild and slight loss in fluid content respectively.” On February 8, 2005, after a review of his own records together with the MRI results, the internist concluded that plaintiff’s cervical and lumbar injuries “were caused as a result of plaintiff’s motor vehicle accident of December 21, 2004”; and “it was determined that the best course of treatment would be continued physical therapy,” which, as noted above, lasted until May 16, 2005.
In May of 2005, the physical therapy sessions were discontinued because the plaintiff’s “no-fault benefits were terminated” and the internist determined that, in any event, “any further physical therapy would have only been palliative in nature.”
The defendants’ motions and plaintiffs’ responses have become almost assembly line, “cookie cutter” prototypes; and attorneys for defendants (and most plaintiffs) have become expert on how to present or attack a serious injury claim. Defendants are very adept at providing prima facie proof demonstrating that a plaintiff has not suffered a serious injury; proof at the very least sufficient to meet their “initial burden” to present competent evidence that plaintiff has no cause of action. Plaintiffs, too, have become quite conversant with the requirements to defeat a defendant’s motion.
To Be Cont…
If you want to file your claim for damages in an estate proceeding, seek the assistance of a Bronx Probate Attorney and Bronx Estate Litigation Attorney at Stephen Bilkis and Associates.