New York Car Accident Lawyer Blog

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.

Continue reading "A third party defendant get Summary Judgment ruling" »

Defendants Platform Taxi Service, Inc. move for an on order, pursuant to CPLR 3212, dismissing the Verified Complaint of plaintiff Sheryl Azevedo, on the ground that she did not sustain a "serious injury" within the meaning of Insurance Law §5102 (d) as a result of the February 21, 2007 accident. Plaintiff alleges "serious injury" under the "significant disfigurement" category in Insurance Law §5102 (d), based upon facial scarring.

A Lawyer said that, in support of their motion, defendants submit the affirmed report of plastic surgeon Robert D. Goldstein, M.D., who examined Plaintiff, and a copy of the transcript of Plaintiff's examination before trial. The results of Dr. Goldstein's examination are stated in their entirety as follows: "Physical examination with specific reference to the area of scarring shows that there is no perceptible residual scarring of the upper lip. On the bridge of the nose, there is an inferior area of white hypopigmentation measuring 1.25 x 0.5 cms, and above this there is a linear scar that measures 1.4 cms. There is no disability associated with these areas of scarring.

A source in Nassau and Suffolk said that, since Dr. Goldstein does not state that the photographs accurately represent that which they purport to depict, they are inadmissible as evidence. In any event, photographs taken three years after the accident, when they are the only photographs submitted, would provide a potentially unbalanced representation of the plaintiff's injury on the question of significant disfigurement, particularly since even temporary disfigurement may qualify as a serious injury. Indeed, Dr. Goldstein states that he reviewed copies of 3 black and white photographs from St. Vincent's Hospital, but the contemporaneous photographs are not provided to the Court for consideration on this motion.

The issue in this case is whether plaintiff suffered “serious injury” within the meaning of Insurance law, as the result of the car accident.

The Court held that the standard, by which “significant disfigurement” is to be determined, is whether a reasonable person would view the condition as unattractive, objectionable, or as a subject of pity or scorn. The dimensions, hue, texture, and particularly the location, of scarring will, of course, influence whether it constitutes a "significant disfigurement," as well as the likelihood that the appearance of a scar could be improved by treatment.

The Court said that, facial scarring requires close evaluation. It is the type of injury which should not be dismissed without viewing the injury. A residual imperfection may not be as significant on other portions of the anatomy as it may be upon the face or other exposed areas. A court, in evaluating the gravity of the disfigurement to determine whether as a matter of law the marring qualifies as a significant disfigurement within the threshold requirements of the No-Fault Law, must consider all relevant factors. These should include the location of the injury, the age, sex and occupation of the victim, other scars of disfigurement, blemishes, imperfections caused by birth injury or the result of pox or acne and any other distinguishing features which will detract from the person's appearance as it existed prior to the date of the accident.

In this case, defendants describe Plaintiff's occupation at the time of the accident as an entertainer at a Gentleman's Club, Flash dancers. Facial scars an inch or less in length have been found to qualify as a significant disfigurement, but have also been found not to qualify. Clearly, quantifiable criteria are of limited use on matters of personal aesthetics, influenced as they are by the age, gender, and cultural dispositions of the plaintiff and the fact-finder.
The Court held that, defendants have failed to make a prima facie showing that "significant disfigurement" within the meaning of Insurance Law did not result from the accident. There is no admissible photographic evidence of Plaintiff's appearance either soon after the car accident or at a later point, although photographs taken at the hospital were apparently in Defendants' possession and provided to its examining doctor. Dr. Goldstein does not address the visibility of the scar on the bridge of Plaintiff's nose, nor does he address the possibility of improvement with treatment. Dr. Goldstein's opinion that there is no disability associated with these areas of scarring is opaque at best, without stated foundation, and appears irrelevant to a claim of "disfigurement."

Moreover, Defendants do not address the relevant factors of this case, including the age, sex and occupation of the victim. Although Defendants appropriately review case law explicating the meaning of "significant disfigurement", there is no articulated correspondence to the facts of this case, including, perhaps most importantly, Plaintiff's occupation.

On this important issue, the Court has noted Defendants' Affirmation in Reply, addressing allegations found in affidavits submitted by Plaintiff in opposition, but which, as properly noted by Defendants, are not in admissible form. Defendants' suggestion that allegations as to the effect of scarring on Plaintiff's occupation fails to account for other factors such as the fact that she has aged, weight gain/loss, or the effects of the economy on people's ability to frequent Gentlemen's Clubs is not shown to have any evidentiary support in the record.

Counsel's further statement that most Gentlemen's Clubs tend to be dark, and for the most part, the customers are not interested in discussing world events with exotic dancers is presumably not based upon personal knowledge.

Thus, in matters of culture and aesthetics, the distinction between summary judgment and trial is particularly important. Hence, the Court denies the defendant’s motion.

Continue reading "Defendants Platform Taxi Service, Inc. move for an on order" »

A pedestrian has been killed after being involved in a fatal traffic accident. Eye witnesses claim that the pedestrian ran out in front of the car. However, according to police reports obtained by the New York Car Accident Law Office, the driver of the car is thought to of been drinking before the accident occurred. It is strongly suspected that drink had a big role to play in the death of this pedestrian.
The victim was in his mid 20’s and was struck by the car as he stepped out in front of it. He has been charged by police with driving under the influence of alcohol and battery. The man has yet to be identified, but police have mentioned that he was from Hispanic descent. The name of the victim will not be released until the family has been contacted.
The accident happened during the early hours of Sunday morning at around 3 AM. The police report shows that the driver was driving along route 17 and was quite close to Gamble Road. Three people ran across the road in front of him, and one was hit. The New York Car Accident Law Office says that it’s not clear whether he would have been able to stop if he was not drunk.
The driver of the vehicle which hit the pedestrian stopped and phoned police to report the accident. However, the people who ran across the road with the man did not stay, instead they fled the scene. The exact reasons for the accident are not clear and the police investigation is still ongoing. It’s expected that there will be more details in the next few weeks.
The emergency services arrived quickly on the scene. However, the man had already died from his injuries by the time the police could respond. He was pronounced dead at the scene by paramedics, and no other treatment was provided. Drunk driving is handled very seriously in Staten Island and Suffolk County.
The driver was not injured but was noticeably shaken up. He was charged by police for driving under the influence. Although he has been charged, him stopping and owning up to his actions will work in his favor.

Continue reading "Alcohol Involved in Accident Which Killed Pedestrian" »