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The accident underlying this case occurred on December 21, 2004…cont

The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendant to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury.” When a defendant’s motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts, and it is then incumbent upon the plaintiff to produce sufficient prima facie evidence in admissible form to support the claim of “serious injury”.

A plaintiff cannot defeat a motion for summary judgment and successfully rebut a prima facie finding that he did not sustain a “serious injury,” merely by relying solely on documented subjective complaints of pain, or by the mere submission of an MRI report demonstrating the existence of a bulging or herniated disc, absent medical proof of a significant physical limitation related thereto.

Claims of “serious injury” under the “permanent consequential limitation” category and under the “significant limitation” category are the most difficult for trial and appellate courts to assess. As noted above, these terms are not defined and many times are used interchangeably. In an effort to assist the trial courts, and to better implement the “legislative intent to weed out frivolous claims and limit recovery to significant injuries,” the Court of Appeals.

A plaintiff should not rely merely on stale medical reports and current “self serving” sworn statements that his/her limitations are ongoing. Recent cases are now looking to the duration of the limitations and thus require current proof that plaintiff is still impaired by said limitations. Proof of significant limitations which are merely relatively contemporaneous with the accident may not be sufficient to establish a serious injury especially if there is evidence provided by defendant’s experts that plaintiff’s injuries have resolved and plaintiff has recovered.

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