In this personal injury case, the defendant disputes that the plaintiff suffered a “serious injury” as defined by § 5102(d) of New York Insurance law. Under New York law, in order for a plaintiff to be able to recover damages based on the negligence of another person or entity, the plaintiff must have suffered an injury that is serious. A serious injury is one that results in significant disfigurement; permanent loss of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; a significant limitation of use of a body function or system; or a medically determined injury that prevents the injured person from performing substantially all of the material acts that the person usually performs.
On March 5, 2008, at approximately 5:00 a.m., the plaintiff was riding a bus owned and operated by defendant Metropolitan Suburban Bus Co. According to the plaintiff, the bus driver stopped short, causing her to slip and fall on the wet floor of the bus. Plaintiff claims that as a result of the fall, she seriously injured her lower back, right knee, and right ankle. About 8 months later, the plaintiff filed a lawsuit against the defendant. The defendant filed a motion for summary judgment dismissal of the claim.
Because the defendant filed the motion for summary judgement, it has the burden of showing that there are not material issues of fact and that as a matter of law, it is entitled to win the case. In this case, the defendant must show that the plaintiff did not sustain a “serious injury.” If the defendant meets its burden, then the burden shifts to the plaintiff to raise an issue of fact as to the existence of a “serious injury.” The court will view evidence in a light most favorable to the non-moving party, which in this case is the plaintiff.