NY Insurance Law §5104(a). NY Insurance Law §5102(d), defines serious injury as: A personal injury which results in death; dismemberment; significant disfigurement, a fracture, loss of 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 all of the material acts which constitute such persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
NY Insurance Law §5102(d). NY Insurance Law §5102(c) defines non-economic loss as pain and suffering and §5102(j) defines covered persons as Any pedestrian injured through the use or operation of, or any owner, operator or occupant of, a motor vehicle which has in effect the financial security provide.
When a defendant seeks summary judgment by alleging that plaintiff’s injuries are not serious under the insurance law and that as such plaintiff does not meet the threshold required to maintain a lawsuit, it is incumbent on the defendant to first establish that plaintiff’s injuries are not serious as defined by the Insurance Law. If defendant meets this burden, defendant has established prima facie entitlement to summary judgment. Id. It then becomes incumbent on the plaintiff to submit proof, in admissible form, of the existence of triable issues of fact with regard to the existence of a serious injury.
Specifically, plaintiff must demonstrate that there is a serious injury under the Insurance Law, that summary judgment is not warranted and that the action mandates resolution by trial. Additionally, and equally important, plaintiff must establish, through admissible medical evidence, that the injuries sustained are causally related to the accident claimed.
A defendant can satisfy the requisite burden of prima facie entitlement to summary judgment in several ways. A defendant can negate the existence of serious injury using plaintiff’s own pleadings. As a matter of course, a defendant’s medical submissions must be based on objective evidence. A defendant’s doctor’s failure to list the objective tests upon which his conclusion is based warrants denial of defendant’s motion on the grounds that said defendant has not established prima facie entitlement to summary judgment. Id. A defendant can submit an affidavit from a doctor who examined the plaintiff and opines that the plaintiff had a normal medical examination. A defendant can submit an affirmation from an attorney indicating that plaintiff’s own medical records and the reports of plaintiff’s own doctors do not indicate that plaintiff suffered a serious injury and that plaintiff’s injuries were not, in any event, causally related to the accident alleged.