Articles Posted in Car Accidents

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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 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 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 injury or impairment.”

“A defendant can establish that the plaintiff’s injuries are not serious within the meaning of Insurance Law§5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff’s claim.” “With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant’s submissions by demonstrating a triable issue of fact that a serious medical was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury.”

In support of the instant motion, defendant submitted the affirmed report of defendant’s examining orthopedic surgeon. He examined the claimant on February 9, 2011, and conducted range of motion testing of his cervical and lumbar spine, right hip and right knee. He compared his finding to what was normal and concluded that plaintiff had normal range of motion in all areas, had no disability and had resolved soft tissue injuries. His examination was conducted over four years after the accident of December 19, 2006 and was silent on the plaintiff’s medical condition during the six month period following the accident. Plaintiff’s verified bill of particulars dated April 7, 2010, however, admits in paragraph six and seven, that he was confined to bed and to home for approximately three weeks and that he lost one week of work due to the accident.

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A Kings Spinal Injury Lawyer said that, by notice of motion filed on May 27, 2011, under motion sequence four, defendant moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) and plaintiff’s claim is derivative to complainant’s claim. By stipulation of all parties dated September 3, 2009, plaintiffs discontinued the action against defendant. Plaintiffs oppose the motion.

A Kings Car Accident Lawyer said that, on June 11, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk’s office. By verified answer dated September 4, 2009, defendant joined issue. On April 12, 2011, a note of issue was filed. Plaintiffs’ instant action is to recover damages for personal and derivative injuries sustained as a result of a motor vehicle accident. Plaintiffs have alleged in the complaint and bill of particulars that on December 19, 2006, at approximately 12:00 a.m., defendant negligently drove a vehicle at the intersection of West Street and Warren Street in the County and City of New York and struck the rear of plaintiff’s vehicle causing serious injury to him and derivative injury to his spouse.

A Kings Spinal Cord Injury Lawyer said that, defendant’s motion papers consist of an attorney’s affirmation and nine annexed exhibits, labeled A through I. Exhibit A is an E-Law print out. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C is a copy of defendant’s verified answer dated September 4, 2009. Exhibit D is the party’s stipulation discontinuing the action against defendant. Exhibit E is a copy of plaintiff’s verified bill of particulars dated April 7, 2010. Exhibit F is a copy of the transcript of plaintiff’s deposition conducted on December 16, 2010. Exhibit G is the affirmed medical report of the doctor, pertaining to his orthopedic examination of the complainant on February 9, 2011. Exhibit H, is the radiological report of the doctor, opining on complainants cervical, thoracic and lumbar spine x-rays taken on February 8, 2007. Exhibit I is the affirmed medical report of the doctor. He in which he opined on the complainant’s MRI lumbar spine study conducted on February 23, 2007.

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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.

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By notice of motion filed on June 24, 2010, defendant moves under motion sequence three, for an order dismissing plaintiff’s complaint, pursuant to CPLR § 3212, on the basis that plaintiff’s injuries do not satisfy the “serious injury” requirement of New York Insurance Law § 5102(d). Plaintiff opposes defendant’s motion. Co-defendant did not appear or oppose the defendant’s motion. On September 22, 2008, plaintiff filed a summons and verified complaint with the Kings County Clerk’s Office. By verified answer, dated December 5, 2008, defendant joined issue. On April 29, 2010, a note of issue was filed.

A Kings Car Accident Lawyer said that, plaintiff’s action is for damages due to personal injury sustained as a result of a motor vehicle accident. Plaintiff’s complaint and bill of particulars alleges that on September 27, 2005, she was a passenger in a 1997 Lincoln Town Car owned and operated by co-defendant when said vehicle collided with a 2000 Acura owned and operated by defendant at the intersection of 58th Street and 6th Avenue in the County of Kings. Plaintiff alleges to have sustained severe physical injury as a result of the defendant’s negligent operation of their vehicles.

A Kings Motorcycle Accident Lawyer said that, defendant’s motion papers consist of a notice of motion, an attorney’s affirmation and seven exhibits, labeled A through G. Exhibit A is an “e-law” document containing details of the instant case. Exhibit B is the plaintiff’s summons and verified complaint. Exhibit C is the defendant’s verified answer. Exhibit D is the plaintiff’s verified bill of particulars. Exhibit E is the affirmed report of neurologist. Exhibit F is the affirmed report of orthopedic surgeon Exhibit G is the affirmed report of radiologist.

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The plaintiff has failed to proffer competent medical evidence that he sustained 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 injury or impairment.

At his deposition, the plaintiff acknowledged that he missed less than 90 days of work as a result of the subject motor vehicle accident; specifically, he acknowledged that he missed seven to eight weeks from work. To establish this prong of the statute, plaintiff’s doctor would have had to inform him that he could not return to work-that is the prerequisite for a medically determined injury. There is no such evidence in any of his medical reports. The important element in establishing injury under the 90/180 day category is that the injury be medically determined. Absent some objective proof of disability to perform the activities of daily living for 90 out of 180 days following an accident, there is no showing of a serious injury from mere allegation. Plaintiff also contends that he has suffered a permanent consequential limitation of use of a body organ or member and a significant limitation of use of a body function or system.

Plaintiff has overcome the motion with regard to these two categories of injury. The radiologists, of course, have no opinion on the issue of causation. The doctors set forth the requisite language establishing their opinion that plaintiff’s injuries were caused by the accident. Plaintiff testified at his EBT to visiting his primary care physician, several times each year through 2007 to the present and presumably prior to 2007 but there is no affirmation from him. His opinion on the issue of causation would be helpful, but it is not necessary.

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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.

The affirmation of the doctor’s, dated June 7, 2010, states he first evaluated the plaintiff on March 17, 2009, four days after the accident. Range of motion testing of the cervical spine revealed flexion to 20 degrees (45 normal); extension to 25 degrees (40 normal); left rotation to 35 degrees (40 normal); right rotation to 25 degrees (40 normal); left lateral flexion to 25 degrees (40 normal); right lateral flexion to 20 degrees (40 normal). Range of motion testing of the lumbosacral spine revealed flexion to 50 degrees (90 normal); extension to 15 degrees (30 normal); left rotation to 10 degrees (30 normal); right rotation to 15 degrees (30 normal); left lateral flexion to 20 degrees (30 normal); right lateral flexion to 25 degrees (30 normal). Examination and range of motion testing of the left knee revealed flexion to 95 degrees (normal is 120) and extension to-10 degrees (normal is 0).

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A Kings Car Accident Lawyer said that, defendants move for summary judgment dismissing plaintiff’s action on the grounds that he did not suffer a “serious injury” as defined by § 5102(d) of the NYS Insurance Law. Plaintiff opposes the motion. Plaintiff claims he sustained personal injury as a result of an automobile accident on March 13, 2009, at the corner of Fort Hamilton Parkway and 65th Street in Kings County, when his vehicle was hit in the rear by a vehicle owned and operated by defendants respectively. Plaintiff states he later sought treatment from several doctors and subsequently commenced the within negligence action against defendants. Plaintiff claims (Bill of Particulars) he has suffered injuries including cervical sprain with herniated disc and radiculopathy, lumbosacral sprain with disc bulges and radiculopathy, and internal derangement of the left knee. Plaintiff was 45 years old at the time of the accident. Examinations Before Trial and Independent Medical Examinations of the plaintiff have been conducted.

A Kings Spinal Injury Lawyer said that, as an initial matter, plaintiff claims that defendant’s motion was not timely made. Plaintiff filed his Note of Issue on February 1, 2010. Defendants filed a prior motion for Summary Judgment on April 21, 2010, within the sixty-day time limit provided for in the Uniform Civil Term Rules for the Supreme Court, Kings County. Defendants then filed this “Amended Motion” on June 10, 2010. The difference between the two motions is that the “Amended Motion” adds the Independent Medical Examination report of a radiologist. On August 19, 2010, the date on which this motion was marked submitted, defendants were asked by the Court to withdraw their first motion to avoid confusion, as there were two motions for the same relief. Plaintiff is correct that the amended motion is late, and that defendants’ papers do not offer a showing of good cause for their untimeliness (CPLR 3212(a). As defendants’ original motion was timely, the court will consider the motion, but not the radiologist IME report, which was first included in the amended motion. In hindsight, the court should have marked the first motion “submitted” and denied the second one as both late and duplicative.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

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This action involves a claim for damages arising out of personal injury suffered by plaintiff Mrs. DB as a result of the alleged negligence of defendant Manhattan and Bronx Surface Transit Operating Authority (MABSTOA). At approximately 9:00 A.M. on December 20, 1979, plaintiff, accompanied by her young son, boarded one of defendant’s buses at Williamsbridge Road and Morris Park Avenue in the Bronx. It had snowed the previous day, leaving an accumulation of some three to three and one-half inches. The weather report for the morning of the accident indicated that the temperature was in the low 20’s. As plaintiff got onto the bus, she noticed that there was slush present on all of the front steps. The vehicle was not crowded, and it made about four or five stops before it reached plaintiff’s intended destination. She then pulled on the signal cord, and the bus halted at the intersection of Bogart and Morris Avenues. She walked back to the front with her son, again observing the slush on the stairs. Standing on the platform leading to the stairwell, she uneventfully assisted her child off the vehicle. Thereafter, she stood up and, holding one hand on the railing, she descended the first step and fell backward onto the stairs, striking against them with her back, left arm and left shoulder, her knees in the slush and her legs bent under her body.

Police Officer DS, who arrived at the scene shortly after the accident, testified with the aid of notes made on the scene that he spoke to both the bus driver and plaintiff. He stated that there was slush on the front stairs of the bus. Moreover, the vehicle was resting at a steep incline at the bus stop, causing it to lean excessively. Although several pages of the Officer’s memo book were marked for identification and read to the jury, the portion relating to the slant of the bus was ordered stricken. According to the officer, the steps were more than just wet, there being a build-up of snow.

The bus driver also took the stand, asserting that while there has been some slush on the steps, the other people on the bus had gotten on and off without any difficulty. Following the accident, he had informed the bus company by telephone, and one of its dispatchers had arrived at the scene. The driver conceded that he had not cleaned the stairs or placed any salt or other material on them nor had he been instructed to do so by the bus company. The written report of the accident prepared by the dispatcher was also entered into evidence.

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With respect to plaintiff’s 90/180 claim, defendants rely on the testimony of the plaintiff which indicates there was virtually no diminution in the plaintiff’s ability to work. Plaintiff returned to work nineteen days after the accident with no change in her job duties.

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. In opposition to defendants’ motion, plaintiff contends that defendants have not meet their burden of proof in establishing that plaintiff’s injuries do not meet the definition of any of the nine categories defined as serious in the insurance law. Plaintiff argues that defendants’ independent medical expert, failed to perform a complete set of range of motion testing in all plains of motion on plaintiff’s injured area, specifically that the doctor did not conduct any range of motion testing in the areas of either left or right lumbar rotation and therefore his opinion that plaintiff has a normal range of motion is suspect.

The Court notes that plaintiff denied any history of a prior car accident or injury during her examination with the doctor as she had also done during her examination with Dr. Miller. The Court also notes that his diagnosis was “Cervical Spine sprain/strain-resolved. Thoracic spine sprain/strain-resolved. Lumbar spine sprain/strain-resolved. There is no evidence of a neurological disability as it relates to the accident of record.” Finally, plaintiff argued that “due to the defendants’ failure to meet their required burden of proof, the plaintiff need not submit any evidence in opposition.”

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Finally, to prevail under the “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 injury or impairment” category, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” “which would have caused the alleged limitations on the plaintiff’s daily activities.” A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

Based upon this evidence, the Court finds that the defendants have established a prima facie case, that the plaintiff did not sustain serious personal injury within the meaning of New York State Insurance Law § 5102(d). The doctor examined the plaintiff, performed quantified and comparative range of motion tests on plaintiff’s cervical spine, thoracic spine, lumbar spine, right shoulder, right elbow, right wrist/hand and right ankle/foot. The doctor performed the range of motion tests on plaintiff using an orthopedic goniometer. The results of the tests indicated no deviations from normal. He concluded, “Cervical spine sprain/strain-resolved. Thoracic spine sprain/strain-resolved. Lumbar spine sprain/strain-resolved. Right shoulder sprain/strain-resolved. Right elbow sprain/strain-resolved. Right wrist/hand sprain/strain-resolved. Right ankle/foot sprain/strain-resolved. There is no evidence of an orthopedic disability.”

Defendants also argue that, in addition to the negative findings of the doctor, plaintiff’s own medical records disprove any claim of lumbar radiculopathy citing the October 8, 2009 North Shore Hospital Department of Radiology MRI report which defendants claim show that plaintiff exhibited pre-existing disc desiccation and only mild disc bulges and herniations. Additionally, defendants submit that plaintiff’s own physician, conducted nerve conduction studies of plaintiff’s upper and lower extremities and found only normal results. Also, all examined muscles showed no evidence of electrical instability (as indicated objectively in the EMG scoring table). Defendants contend that this disproves plaintiff’s allegations of neurological disabilities, including radioculopathy. Thus, all claims of neurological disabilities within plaintiff’s Bill of Particulars are without merit.

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