This action is for personal injuries alleged to have occurred as a result of a motor vehicle accident involving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Personal Injury Lawyer said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the accident.
A Lawyer said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, "owned operated and controlled" the traffic signal at the subject intersection. A Suffolk Personal Injury Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.
A source said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the car accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a doctor said that defendant argues that plaintiff has not satisfied the "serious injury" threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff's alleged soft tissue spinal injuries do not constitute a serious injury.
The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.
The Court held that, New York's No-Fault Insurance Law precludes recovery for any "noneconomic loss, except in the case of serious injury, or for basic economic loss" arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries". The Legislature also intended that the issue of whether a plaintiff sustained a "serious injury" could be determined by the courts as a matter of law on a motion for summary judgment.
The Court cited the provisions of the 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".
To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the plaintiff's present limitations to the normal function, purpose and use of the affected body, organ, member or function. "Whether a limitation of use or function is 'significant' or 'consequential' relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part". A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the plaintiff.
The Court said that, a movant seeking summary judgment on the ground that a plaintiff's negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury". Once a movant meets this burden, the plaintiff must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.
In the case at bar, the Court finds that defendant's submissions were sufficient to establish that plaintiff did not sustain serious injury to her back, left hip or left wrist as a result of the accident. The burden, therefore, shifted to plaintiff to raise a triable issue of fact, and she failed to present competent medical evidence substantiating her claim that her spinal injuries caused a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system. While under certain circumstances a herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), plaintiff failed to provide any objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration. Furthermore, plaintiff did not provide any recent medical evidence in opposition to the instant application; instead, plaintiff merely provided unsworn reports and records from the physicians who examined and treated plaintiff in the months following the accident in February of 2002. Such submissions were insufficient to rebut defendant's prima facie showing of no serious injury.
Accordingly, the Court held that the motion by defendant for summary judgment dismissing plaintiff's complaint on the grounds that plaintiff has failed to sustain a "serious injury" as that term is defined by Insurance Law § 5102(d), is granted.