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NY Court Rules Plaintiff’s Claim is Dismissed Pursuant to CPLR §§ 321 land 3212 and Article 51 – Branch v. Metro. Suburban Bus Auth., 2010 NY Slip Op 33281 (N.Y. Sup. Ct., 2010)


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.

To support its contention that the plaintiff did not suffer a serious injury in the bus accident, the law requires that the defendant submit objective proof of the plaintiff’s injury such as sworn MRI and CT scan tests, along with the doctor’s observations during the physical examination of the plaintiff. The defendant submitted testimony from a doctor who performed an independent orthopedic medical examination of plaintiff. The defendant also submitted an MRI as well as the plaintiff’s medical records from her doctor, a letter from her chiropractor, and records from the emergency department that treated her.

The records show that all of the medical issues that the plaintiff claimed to have suffered had been resolved. According to one doctor, the plaintiff showed no evidence of an orthopedic disability. In addition, the defendants argue that the plaintiff’s own medical records disprove her claim of lumbar radiculopathy, and that the plaintiff’s own doctor conducted nerve conduction studies of plaintiff’s upper and lower extremities and found only normal results. In addition, there was no evidence of electrical instability when her muscles were examined.
Finally, the defendant argues that it is entitled to summary judgment because there is evidence that the plaintiff had accidents both before and after the accident on the bus at issue in this case. When presented with this information, the plaintiff acknowledged that she had an “old back injury.”

Based on the evidence, the defendant met its burden. Now the burden shifts to the plaintiff to present evidence to overcome the evidence submitted by the defendant.

In opposition to defendants’ motion, plaintiff argues that defendant’s independent medical expert failed to perform a complete set of range of motion testing in the areas of either left or right lumbar rotation and therefore his opinion that she has a normal range of motion is questionable. In support of her contention, the plaintiff submitted testimony of another doctor who conducted an independent neurological examination of plaintiff. This doctor stated that the plaintiff has significant losses of range of motion in her lumbar spine and that the losses are due to the fall on the bus. However, the record also indicated that the plaintiff failed to disclose to this doctor that she had suffered any prior accident or injury.

The Court concluded that the plaintiff did not meet her burden by presenting sufficient evidence to overcome the defendant’s evidence by demonstrating the existence of a triable issue of fact that she suffered a serious injury. In addition to not providing sufficient evidence that she suffered a serious injury, the court noted that even if she had, because she had other medical problems before and after the bus accident, it would be hard for her to demonstrate that the bus accident caused her limitations.

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