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.
The defendant may rely on plaintiff’s admissions in the verified bill of particulars to establish that the plaintiff did not meet the 90/180 category of serious injury of Insurance Law §5102(d). Where a plaintiff made admissions in a bill of particulars of having missed no more than a week from and having been confined to home and incapacitated from household duties for only three weeks, a defendant may use such admissions to make the necessary showing that the plaintiff did not sustain a medically determined injuty pursuant to Insurance Law § 5102(d) .
The Appellate Division First Department came to a similar conclusion in the 2008 case decision. In the said case the Appellate court found that the defendants met their initial burden under the 90/180 category by submitting plaintiff’s deposition testimony and bill of particulars which indicated that the plaintiff had been confined to bed for five days and missed five days of work following the accident. Accordingly, defendant has made a prima facie showing that the claimant did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and has shifted the burden to the dog bite plaintiff to come forward with evidence to demonstrate a triable issue of fact.
In opposition, the plaintiff failed to raise a triable issue of fact. Since the plaintiff alleged a permanent serious injury and a significant limitation of use, plaintiff was required to submit objective medical evidence based upon a recent examination.
Plaintiff failed to satisfy this requirement. Plaintiff submitted the affirmation of his treating physician, which set forth his findings based on an examination of the plaintiff on February 8, 2007. Plaintiff’s treating physiatrist set forth his findings based on an examination of the plaintiff on December 19, 2006. Plaintiff’s treating chiropractor, set forth his findings from three examinations of the plaintiff which occurred on December 19, 2006, February 23, 2007 and May 2007.
Furthermore, in view of the plaintiff’s verified bill of particulars and deposition testimony that he missed only one week of work and was confined to bed and to home for only three weeks as a result of the subject accident, he failed to raise a triable issue of fact under the 90/180 day category of Insurance Law 5102(d).
Accordingly, the court held that defendant’s motion pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that complainant did not sustain a serious injury within the meaning of Insurance Law §5102(d) is granted.