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Insurance Law § 5102 (d

A Kings Car Accident Lawyer said that, this is an action to recover damages for personal injury allegedly sustained by plaintiff, as a result of a motor vehicle collision that occurred on May 15, 2003, at the intersection of Driggs Avenue and Grand Street in Brooklyn, New York. Plaintiff was a passenger in a motor vehicle owned and operated by defendant which was struck by a motor vehicle owned by defendants. Plaintiff alleges that defendants’ negligence proximately caused her injuries. In her bill of particulars, plaintiff alleges that she sustained, inter alia, central disc protusion C2-C3, central disc herniations C5-C6, disc bulge C3-C4, right cubital tunnel syndrome, lower back pain, ulnar neuropathy and right and left rib contusion.

A Kings Auto Accident Lawyer said that, defendants move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury as that term is defined by Insurance Law § 5102 (d). The other defendant cross-moves for an order requesting the same relief and adopts the facts and arguments advanced by the defendants. In their motion, defendants assert that plaintiff did not sustain a “serious injury” as the term is defined by Insurance Law 5102 (d) and, therefore, her claims should be dismissed.

The issue in this case is whether plaintiff sustained serious injury as a result of the auto accident.

In a personal injury action seeking damages for injuries allegedly sustained in a bike accident, the plaintiff must, as a threshold matter, establish that he or she has sustained a “serious injury” as defined in Insurance Law § 5102 (d). Accordingly, to succeed on their motion for summary judgment, defendants must meet an initial burden of showing that plaintiff did not, as a result of the accident at issue, sustain a serious injury as defined by Insurance Law § 5102. Defendants may sustain the initial burden by submitting an affidavit and/or affirmation of a medical expert who examined plaintiff and “concluded that no objective findings support the plaintiff’s claim” of serious injury. Once a defendant has prima facie established that the plaintiff did not sustain a serious injury, the burden shifts to plaintiff to come forward with admissible proof that raises a triable question of fact. If plaintiff cannot meet this burden, the court will grant summary judgment to defendant.

“The court’s function on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but merely to determine whether issues of fact exist”.

Defendants, by the foregoing submissions, have made a prima facie showing that plaintiff did not sustain a “serious injury,” shifting the burden to plaintiff to submit objective evidence that a “serious injury” was sustained and that it was causally related to the May 15, 2003 bike accident.

Accordingly, the burden shifts to plaintiff to come forward with sufficient evidence to raise a triable issue of fact. In order to refute movant’s showing and to establish that she sustained a serious injury, plaintiff must submit “objective proof, such as an expert’s designation of a numeric percentage of her loss of range of motion,’ or an expert’s qualitative assessment of her condition, provided that the evaluation has an objective basis and compares her limitations to the normal function, purpose and use of the affected body organ, member, function or system'”. Moreover, where there is a pre-existing injury that defendants have established as being relevant to the injury in litigation, plaintiff’s expert must present objective evidence distinguishing between the injuries sustained in one accident and those sustained in another, and cite objective evidence to explain the expert’s opinion that the plaintiff’s pre-existing injuries were resolved prior to the instant accident.

If you have been involved in an auto accident and sustained serious injury thereon, seek the legal assistance of a Kings Personal Injury Attorney and Kings Truck Accident Attorney at Stephen Bilkis and Associates.

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