The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.
Defendants contend the complaint must be dismissed because plaintiff has not sustained a “serious injury” within the meaning of Insurance Law § 5102(d) which provides: “Serious injury” means 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 consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially 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 injury or impairment.
Where a motion for summary judgment is predicated on a determination of “serious injury “the moving party has the initial burden of submitting sufficient evidentiary proof in admissible form to warrant a finding that the plaintiff has not suffered a “serious injury “. Defendants’ evidence, comprised of experts’ affirmations, supports the conclusion that plaintiff did not sustain a “serious” injury, and thus defendants have met their prima facie burden of proof.
The Plaintiff then has the burden of overcoming the motion. Plaintiff opposes the motion. In his affidavit (Exhibit E), plaintiff states that as a result of the accident he still has pain in his neck, lower back and left knee. He does not mention his shoulder. He states that he began treating with his doctor shortly after the accident, and received treatment approximately two or three times a week for approximately three or four months. He also treated with an orthopedist, and his personal physician. He was referred for MRIs. He states that he stopped consistent treatment after four months because his mother was ill and he needed to care for her. However, he states that he continued to treat with them every month or two. He says that as a result of the accident, he can no longer play basketball or run and has difficulty walking, driving, sitting, sleeping, standing up, and Lifting his client’s luggage. Plaintiff states he missed approximately seven to eight weeks of work as the result of the accident.