Articles Posted in Hit and Run

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This is an action for personal injury in which a Bronx man alleges that he sustained an injury as a result of a motor vehicle accident. A vehicle owned by a cab cormpany struck the man’s vehicle in the rear. The man claims that as a result of the accident he sustained spine injury, back pain, muscle spasms in lumbar spine and radiculopathy. The opponent however requests to dismiss the case agasint them on the ground that the man failed to meet the serious injury threshold.

In support of their motion, the opponents submitted the affirmed medical report of a radiologist who reviewed the MRI of the man’s thoracic spine. The opponent also submitted the affirmed medical report of a board certified neurologist and the man’s deposition testimony.

The Westchester radiologist found a scoliosis and diffuse degenerative changes of the thoracic intervertebral discs of the man and concluded that the small posterior disc protrusions present are of uncertain age and etiology and may be degenerative in nature.

The neurologist, who conducted a physical examination of the man, used a hand held goniometer to measure the man’s ranges of motion and found a normal range of motion in all spheres. In her diagnosis, the neurologist determined normal neurological evaluation, no focal deficits and a neurologically intact. Aside from her quantification assessment, the neurologist also made a qualitative assessment, finding that the man was able to get on and off the bed and turn to his sides unassisted. He can boot, unboot, dress and undress without assistance. He can also move his head, neck and body freely during unguarded conversation. She further found no neurological disability and he has no restrictions on activities of daily living and no permanency or residuals.

The opponents also pointed the man’s deposition testimony in which he testified that he is self-employed as an owner of a security guard company and is required to supervise his staff and to travel to three different locations during the day. He further testified that he stayed home three or four days after the accident and probably missed three weeks from work. He further testified that the only physical or athletic activity that he engaged in before the accident was weight training which he continues to engage in to a lesser degree.

The man initially seeks to discredit the opponents’ experts. He argues that the neuroligist fails to review any of his medical records and the neurologist reliance solely on her onetime physical examination undercut her conclusion that the man did not sustain a serious injury. He also argues that the radiologist’s conclusion after reviewing the MRI film that the small posterior disc protrusions were the result of degenerative changes not trauma is irrelevant and therefore the opponents failed to demonstrate that the disc bulges, herniated discs, limitation of flexion, extension and rotation of the man’s thoracic spine as found by their own examining physicians did not demonstrate a serious damage.

The opponent however failed to meet the burden of showing that the man did not sustain a serious injury as a result of the accident. The papers submitted by the opponent in support of the motion included the affirmed medical report of his examining orthopedist which showed the existence of limitations in the range of motion of the injured the man’s cervical spine. The bare conclusory opinion of the opponent’s orthopedist is that the decreased range of motion is due to degenerative changes that are pre-existing and was without probative value.
Consequently, the court granted the motion of the opponents to dismiss the case filed against them and further dismissed the complaint.
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This action arises out of an automobile accident. It is alleged that at the time of the accident, the complainant man was the driver of a motor vehicle in which the complainant women were passengers; and that the complainants’ vehicle was rear-ended by the defendants’ vehicle.
Under the no-fault law, in order to maintain an action for personal injury, a complainant must establish that a serious injury has been sustained. 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 the defendants to establish, by the submission of evidentiary proof in admissible form, that the complainant man 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 complainant to produce legitimate evidence in admissible form to support the claim of serious injury.

In support of a claim that the Westchester complainant has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physician or the unsworn reports of the complainant’s examining physician. Once the burden shifts, it is incumbent upon the complainant, in opposition to defendant’s motion, to submit proof of serious injury in admissible form. Unsworn reports of the complainant’s examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician’s personal examination and observations of the complainant is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a complainant’s serious injury. Unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a legitimate case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician’s own examination, tests and observations and review of the record rather than manifesting only the complainant’s subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the Civil Practice Law and Rules to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice.

In any event, the findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that the complainant sustained at least one of the categories of serious injury as enumerated in Insurance Law.

A Bronx physician’s observation as to actual limitations qualifies as objective evidence since it is based on the physician’s own examinations. Furthermore, in the absence of objective medical evidence in admissible form of serious injury, the complainant’s self-serving affidavit is insufficient to raise a triable issue of fact.

The defendants have submitted proof in admissible form in support of the motion for summary judgment, against the complainant driver for all categories of serious injury, except for the category of 90/180-days. The defendants submitted the affirmed reports from two independent examining physicians (an orthopedist and a neurologist).

The affirmed report of defendants’ independent examining orthopedist indicates that an examination conducted revealed a diagnosis of status-post cervical, thoracic and lumbar sprain/strain and status-post right knee injury. He opines that claimant does not need any treatment or testing from an orthopedic perspective. The orthopedist concludes that the claimant has no disability or work restriction.

The affirmed report of defendants’ independent examining neurologist indicates that an examination conducted revealed a diagnosis of normal neurological examination, no focal deficits, neurologically intact, resolved cervical, thoracic, and lumbar sprain/strain, claimant’s knee complaints are deferred to the appropriate specialty. He opines that claimant does not need any treatment or testing from a neurological perspective. The neurologist further opines that there is no disability at the present time. Finally, the neurologist concludes that there are no restrictions of activities of daily living, including work, at the present time.

The defendants have failed to raise a triable issue of fact as to the 90/180-day claim. When construing the statutory definition of a 90/180-day claim, the words substantially all should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment. The defendants’ experts examined the complainant driver almost 4 years after the date of the complainant’s alleged personal injury and accident. The defendants’ experts failed to render an opinion on the effect the injuries claimed may have had on the complainant for the 180 day period immediately following the accident. The reports of the independent medical examiner (IME) relied upon by defendants fail to discuss this particular category of serious injury and further, the IME’s took place well beyond the expiration of the 180-day period. With respect to the 90/180-day serious injury category, the defendants has failed to meet their initial burden of proof and, therefore, has not shifted the burden to the complainant to lay bare its evidence with respect to this claim. As the defendants have failed to establish a legitimate case with respect to the ninth category, it is unnecessary to consider whether the complainant driver’s papers in opposition to the defendants’ motion on this issue were sufficient to raise a triable issue of fact. Accordingly, the defendants are not entitled to summary judgment with respect to the ninth category of serious injury, regarding the complainant driver.

The aforementioned evidence amply satisfied the defendants’ initial burden of demonstrating that the complainant driver did not sustain a serious injury, with regards to all categories except for the ninth category of 90/180-days. Thus, the burden then shifted to the complainant driver to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law, as to all categories except for the ninth category of 90/180-days. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.

In opposition to the motion, the complainant driver submitted the uncertified police accident report, pleadings, unsworn medical records, an affirmation and narrative report of the complainant’s physiatrist, an affirmation and MRI report of the complainant’s radiologist, and the complainant’s own affidavit.

A medical affirmation or affidavit which is based upon a physician’s personal examinations and observation of the complainant is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a complainant’s serious injury. The causal connection must ordinarily be established by competent medical proof. The complainant has established a causal connection between the accident and the injuries. The affirmation submitted by the treating physiatrist sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident to support his conclusion that the complainant suffered significant range of motion deficits in the complainant’s neck and lower back.

The physician’s medical examination opines that the injuries are permanent in nature, significant, causally related to the motor vehicle accident and result in a permanent consequential impairment of the patient’s abilities. Clearly, the complainants’ experts’ conclusions are not based solely on the complainant driver’s subjective complaints of pain, and therefore are sufficient to defeat the motion.

Therefore, the complainant driver has raised a triable issue of fact and accordingly, the defendants’ motion for summary judgment is denied in its entirety as against the complainant driver.
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This is a case resolving the motion filed by the defendant for a summary judgment on the ground that plaintiff did not suffer any “serious injury” in the car accident which preceded the filing of this instant case. The defendant alleged that the injuries suffered by the plaintiff do not belong to the same category as that which was defined under the New York State Insurance Law. Plaintiff was not able to submit any opposition to the motion.

This case sprang from the incident which occurred on April 8, 2010 in Westchester wherein the parties were involved in a motor vehicle accident which led to the injuries sustained by the plaintiff. According to the plaintiff, he sustained the following damages: partial tear of the left shoulder and spinal injuries.

Under the law, it is required that the movant for a motion for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. He must be able to establish his claim by tendering evidence to prove that the court must decide in his favor.

A motion for summary judgment requires that there must be no triable issue of fact presented by the movant. Thus, in this case, the defendant must prove, by competent and relevant evidence that the plaintiff did not sustain any serious injury which could have been the possible result of the vehicular collision between the parties.

On the other hand, the plaintiff must provide an objective proof of the injuries he sustained. An example of such evidence is a sworn MRI and CT scan tests. These tests must be paired with the physician’s observations during the physical examination of the Bronx plaintiff. There could also be factors that may override the plaintiff’s claim of serious injury such as: gap in the treatment, intervening medical problem, or a pre-existing condition which interrupted the chain of causation between the accident and the claimed injury.

The Court ruled that the plaintiff must demonstrate through competent, objective evidence, a “medically determined injury or impairment of a non-permanent nature” which would have been caused the alleged limitations on the plaintiff’s daily activities. This is required in order for the “medically determined injury or impairment of a non-permanent nature which prevents a person from performing substantially all of the material acts which constitutes such person’s usual and customary daily activities for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the injury or impairment” clause.

In determining if the plaintiff is entitled to receive damages based on said clause, it is a must that the evaluation has an objective basis and the evaluation compares the plaintiff’s limitation to the normal function, purpose and use of the injured body organ, member function or system.

The Court ruled that the defendant in this case has established a prima facie case that the plaintiff did not sustain a serious injury within the categories of permanent loss of a body organ, member, function or system, a significant limitation of the use of a body function or system and a medically determined injury or impairment of a non-permanent nature which prevented a person from normally performing his daily activities. The plaintiff failed to provide proof of the extent of the damage or injury brought to him by the incident. Also, the evidence revealed that the plaintiff has formerly experienced a motor vehicle accident which has contributed to his present state.

On the other hand, the plaintiff failed to raise the issue of fact through objective medical evidence or any other type of evidence.
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This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A source said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Spine Injury Lawyer said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Plaintiff’s Hospital emergency department records for treatment rendered on the day of the accident show that he complained of pain in his neck and upper back. X-rays of plaintiff’s cervical and thoracic spine performed at the hospital that day show no signs of fracture, dislocation, significant subluxation, or soft tissue abnormalities. The hospital radiologist opined that x-rays of plaintiffs thoracic spine taken that day showed mild degenerative changes and minimal biconcave scoliosis of the lower-thoracic-upper lumbar spine. Based on these findings, the attending physician diagnosed plaintiff with neck/back pain, but also found that there were no injuries to his head, shoulder, arm or leg. In his report dated August 30, 2006, the neurologist doctor states that he performed an independent neurological examination of plaintiff, and his findings include a motor examination that was “5/5” in all extremities with normal tone; DTR’s that were “2 +” and symmetrical; an intact sensory examination; and a normal gait. The doctor opined that plaintiff had sustained sprains of the cervical and thoracic spine injury, but that there were no objective findings to indicate a neurological disability. He also concluded that plaintiff had a pre-existing history of a degenerative condition of the spine. In his report dated October 23, 2006, the orthopedic doctor states that he performed an independent orthopedic examination of plaintiff on that date, and his findings include no muscle atrophy; a negative straight leg raising test; and motor strength that was “5/5.” His testing also showed a normal range of motion of the cervical spine, thoracic spine, shoulders, elbows, wrists and hands as well as no tenderness, heat, swelling, erythema or effusion of the upper or lower extremities. Additionally, he noted that plaintiff’s medical history included a prior neck and back injury. He opined that plaintiff had sustained sprains on the cervical and lumbar spine which exacerbated pre-existing injuries.

A Suffolk Spine Injury Lawyer said that, plaintiff Employment Verification records show that he was employed continuously with the from April 20, 1998 until the date of the verification, March 1, 2006. These records also show that plaintiff was paid in full from an LIRR sick bank from March 11, 2005 through to March 15, 2005, and from March 21, 2005 through to March 31, 2005, and that he worked on March 16 and April 1, 2005. Plaintiff testified that he was employed on a full-time basis as a plumber at the time of the accident. His duties included maintaining the plumbing systems at different stations and outlying buildings. He went to work the Friday after the accident, but he was sent home after a few hours. In total, he missed approximately three weeks of work as a result of his personal injuries. Upon his return, he performed the same duties as before, except that he was unable to lift heavy equipment or materials. He also has difficulty gardening and engaging in various sporting activities such as waterskiing. In addition, he restricts himself to a 40-hour week and has turned down available overtime since the accident. Plaintiff further testified that he was injured in a prior motor vehicle accident about 20 to 25 years ago, at which time he received some chiropractic treatment to his back.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

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.”
The Court said that, in order to recover under the “permanent loss of use” category, plaintiff must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system” categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the “qualitative nature” of plaintiff’s limitations, with an objective basis, correlating plaintiff’s limitations to 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.

It is for the Court to determine in the first instance whether a prima facie showing of “serious injury” has been made out. The initial burden is on the defendant “to present evidence, in competent form, showing that the plaintiff has no cause of action”. Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

By their submissions, the Court held that the defendants made a prima facie showing that plaintiff did not sustain a serious injury. Defendants’ examining orthopedist found, upon a recent examination, that plaintiff had a normal range of motion of the upper extremities with no atrophy. Similarly, defendants’ examining neurologist, round, upon a recent examination, that plaintiff had normal range of motion of the cervical and lumbar spine, with no paravertebral tenderness or spasm. Furthermore, defendants’ examining radiologist opined, based upon his review of plaintiff’s MRI studies, that plaintiff had a multilevel preexisting degenerative condition of the cervical spine, but that there was no evidence of any causally related injuries. Defendants remaining evidence, including plaintiff’s deposition testimony, also supports a finding that he did not sustain a serious injury. As defendants have met his burden as to all categories of serious injury alleged by plaintiff, the Court turns to plaintiff’s proffer.

In opposition to this motion, plaintiff submits, among other things, the unaffirmed report of plaintiff’s treating radiologist; and the affirmed report of plaintiffs treating osteopath. Initially, the unsworn report of the doctor that was discussed in detail by defendant’s examining orthopedist has been considered as it is admissible. In his report, the doctor states that he performed MRI studies of plaintiff’s cervical spine, and his findings include straightening of cervical lordosis; diffuse disc dehydration; and posterior disc bulges. While he observed a ventral cord abutment at C-4/5 through C-6/7, he also noted that there were no significant protrusions into the neural canal, recesses or foramina. He opined that these studies showed no focal prevertebral or posterior paraspinal abnormal masses.

The Court held that, plaintiff has provided insufficient medical proof to raise an issue of fact that he sustained a serious injury under the no-fault. Initially, it is noted that plaintiff failed to submit any medical proof addressing his prior neck/back injuries as well as his condition relative to thereto. In this regard, the doctor failed to indicate awareness that plaintiff had previously injured his neck/back, therefore, any conclusion on his part that plaintiff’s claimed injuries were causally related to the subject incident was mere speculation. The doctor also failed to adequately address the preexisting degenerative condition of plaintiff’s cervical spine as diagnosed by his own treating radiologist only two months after the accident, as he did not provide a sufficient foundation or objective medical basis supporting the conclusion which he reached, namely, that the alleged conditions were causally related to or exacerbated by the accident. Further, while the doctor records plaintiffs complaints of pain, he has failed to present medical proof that was contemporaneous with the accident showing any initial range of motion restrictions for the affected body parts. Additionally, the report of the doctor tends to show that plaintiffs injuries, which consisted of a cervical and thoracic sprains/strains and myofascial derangements, were mild, minor or slight. In any event, the doctor has not adequately explained the approximate 14-month gap in treatment between the conclusion of plaintiffs last exam on March 30, 2006 and his most recent examination of plaintiff in May 3, 2007, shortly after the filing of defendants’ motion. Thus, plaintiff’s unexplained gap in medical treatment was in essence, a cessation of treatment that is not addressed by competent proof. Additionally, the proof submitted by the plaintiff is insufficient to raise a triable issue of fact.

Moreover, since there is no evidence in the record demonstrating that plaintiff’s alleged economic loss exceeded the statutory amount of basic economic loss, his claim in this regard must be dismissed. Accordingly, the Court held that this motion for summary judgment is granted and plaintiff’s cross motion is denied as moot.
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This action was instituted by the plaintiff for alleged personal injuries sustained in a motor vehicle accident occurring on January 27, 2003 at approximately 12.21 a.m. on Barton Avenue at or near its intersection with Valley Road in Patchogue, Suffolk County on Long Island, New York. A source said that, the plaintiff alleges that the defendant taxi company, being driven by co-defendant, attempted to make a left turn from Barton Avenue, eastbound, onto Valley Road without signaling and came into contact with the plaintiff’s vehicle which was proceeding straight on Barton Avenue in a westerly direction. The plaintiff claims she hit the steering wheel and was bleeding from her left knee. This lawsuit thereafter ensued.

A Lawyer said that, the defendants now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint on the grounds that the plaintiff has not sustained a “serious physical injury” as that term is defined in Insurance Law §5102(d). The defendants submit medical proof to substantiate their claim that the plaintiff failed to sustain a “serious injury” in the car accident. The plaintiff opposes the requested relief in an attorney’s affirmation arid submission of the plaintiff’s deposition but proffers no medical proof to substantiate the claim of a “serious physical injury”.The issue in this case is whether plaintiff sustained serious personal injury as defined under the Insurance Law.

The function of the Court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is `arguable; `issue finding, rather than issue determination is the key to the procedure.

Although the question of the existence of a “serious injury” is often left to the jury, where properly raised, the issue of whether a plaintiff is barred from recovery in a judicial forum for want of a “serious injury” is, in the first instance, for the Court’s determination. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide.
Section 5104 of the Insurance Law provides that an individual injured in an automobile accident may bring a negligence cause of action only upon a showing that the individual has incurred a “serious injury” within the meaning of the no-fault law. Insurance Law §5102(d) defines “serious injury” as a personal injury which results in death; dismemberment, significant disfigurement and 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 a plaintiff’s personal 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 concluded that no objective medical findings support the plaintiff’s claim. With this established, the burden shifts to the plaintiff to come forward with admissible evidence to overcome the defendants’ submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. In this situation, the plaintiff must present objective medical evidence of the injury based upon a recent examination of the plaintiff. However, the plaintiff does not provide any medical documentation even though confronted by the defendants with three medical experts attesting to their examination of the plaintiff and their findings that plaintiff suffers from no significant limitation of use of a body function or system or permanent consequential limitation of movement or use of a body member.

Furthermore, the New York Court of Appeals has stated that a sufficiently described opinion by a doctor on the “qualitative nature of the plaintiff’s limitations based upon the normal function, purpose and use” of that body part is sufficient even without specific degrees of limitation or an arbitrary cutoff of degree. However, the Court of Appeals went on to state that a diagnosis of a bulging or herniated disc, by itself, does not constitute a serious physical injury and the plaintiff must provide objective evidence of the extent and degree of any alleged physical limitation resulting from the spinal injuries, the duration and causality to any limitation of motion.

Generally a soft tissue injury with cervical and low back sprain does not meet the threshold for serious spinal injury. These were the types of injuries which the legislature hoped would no longer burden the court system under the no-fault scheme. Neither are subjective complaints of transitory pain due to cervical and lumbar sprains sufficient. Here, in the case at bar, the defendants present the affirmation of the doctor who conducted a neurological medical examination and found no neurological disability and normal range of motion tests; an orthopedic medical evaluation of the plaintiff by the doctor who found no permanent or residual injuries and who found no limitations of movements on the tests conducted and set forth in his medical report; and an affirmed radiological medical examination by the radiologist who found normal spinal alignment and no injury causally related to the accident. The Court finds that the defendants have met their burden of proof by the reports and affirmations of the medical authorities submitted on this motion.

At that point, supported by objective testing, it was incumbent upon the plaintiff to produce competent medical testimony and evidence showing that she sustained a serious physical injury. Plaintiff has failed to so assemble any competent medical proof to refute the defendants’ medical findings of no serious injury. The plaintiff has failed to substantiate a permanent or serious physical injury with an objective test or finding. The proof adduced by the plaintiff relies upon unsupported conclusions by the plaintiff’s attorney in his affirmation and the plaintiff’s deposition testimony. Plaintiff’s conclusory statements of undifferentiated pain and discomfort and range of motion restrictions, standing alone, without objective testing results or degrees of limitation is fatal to her complaint. She fails to raise a factual issue requiring a denial of the defendants’ motion.

Here, in the case at bar, the Court is confronted with soft tissue injuries and subjective complaints of pain by the plaintiff in conclusory fashion only. The defendants detail the medical reports by the defendants’ doctors suggesting no restrictions of movement or range of motion or any other pathology to support an injury. Clearly, the failure to submit some medical authority to support the plaintiff’s subjective complaints of pain is fatal to her opposition to the defendants’ motion and supports summary disposition and dismissal of the action.

Accordingly, under the facts and circumstances as presented in this case and after reviewing the deposition of plaintiff and the defendant, all the medical exhibits submitted in support of the motion and none being offered in opposition thereto, the Court concludes that the plaintiff has failed, as a matter of law, to establish the threshold of sustaining a serious physical injury or any causal relationship with the motor vehicle accident occurring on January 27, 2003. A review of the medical submissions has failed to raise a triable issue of fact that the plaintiff sustained a serious physical injury and therefore, the defendants’ motion for summary judgment and dismissal of the plaintiff’s action pursuant to CPLR §3212 is hereby granted and the plaintiff’s action is dismissed.
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A woman was driving her car sometime on June 10, 2005. She was involved in a vehicular accident. The impact caused her neck to snap back and her entire body was shaken violently. She lost consciousness and she was taken to the hospital by the emergency services. She experienced excruciating pain in her neck and left shoulder. An x-ray was taken of her and she was observed overnight in the hospital. The next day she was discharged but was advised to go for follow-up a neurologist. The woman experienced tingling and numbness from her back to her hips and from her shoulders to her fingers. Her neurologist advised her to undergo physical therapy.

The physical therapy alleviated the tingling sensation somewhat but the numbness persisted. The neurologist referred her to a neurosurgeon who advised her to undergo surgery on her spine. The woman was afraid of having any surgery on her spine so she went to a chiropractor instead.

Until the trial, the Queens woman testified that her arms, shoulders and hips become numb when she holds a position for a long period of time. She has trouble turning her neck and she has trouble lifting things. The woman is a nurse who works with newborns. She assists in deliveries of infants and she also cares for newborns in the intensive care unit. Her work involves standing for long periods of time which she now finds difficult to do without experiencing pain and numbness.

She claims that she has had prior injuries in 1986 when she sustained a concussion in a car accident. She also suffered injury in her right arm in 1992. She slipped on the ice in 2001 and at work a heating lamp fell on her which injured her shoulder.

The woman filed a cause of action in damages against the driver of the other car involved in the car accident. She claims that the car accident caused a serious injury for which she now claims compensation in damages.

In support of her claims, her personal Staten Island physician submitted a report which stated that the woman was undergoing treatment for chronic knee pain caused by sprain of the ligaments in the knee and in the patella. The doctor’s impression was that the woman needed a blood work-up to determine if she is suffering from rheumatism.

A radiologist also provided a report on an MRI which was performed on the woman’s neck at or around the time of the accident. The radiologist saw that there was degeneration in the cervical spine of the woman. There was narrowing and dehydration of her discs. The radiologist failed to state the probable cause of the degeneration in the woman’s cervical spine.

A psychiatrist who was also a neurologist also examined the woman and she reported that the range of motion of the woman’s lumbar spine was normal. However, there is nothing in the report that states what kind of range of motion tests were performed on the woman. The doctor opined that the woman has no neurological disability or limitations. The doctor could not see any reason why the woman cannot continue her usual and daily activities.

The opponent of the woman in this suit (the driver of the other car involved in the accident) filed a motion for summary dismissal asking that her cause of action be dismissed.

The Court held that the conflicting medical reports of the doctors who examined and treated the woman’s spine give rise to an issue of material fact that must be tried by a jury. The Court denied the motion for summary judgment and remanded the case for trial.
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An automobile accident occurred and, as a result, the appellee suffered serious injuries. He was taken to a Medical Center where he was evaluated by several NYC physicians, including a surgeon, an orthopedist, and a radiologist. However, these physicians misinterpreted appellee’s x-rays and radiological studies, and negligently concluded that he did not suffer a recent spinal injury, specifically a spinal column injury. Consequently, the attending surgeon and assistant encouraged appellee to attempt to walk approximately a week after the automobile accident. When he arose from the bed, appellee felt a shock and collapsed. He was then transferred to another Medical Center, a Regional Medical Center (second Medical Center), where he underwent surgery on his spine, but the surgery was not successful in reversing the spinal column damage, the spinal injury. The appellee then retained a lawyer of a certain law firm to investigate and initiate a legal malpractice action against the various physicians. The lawyer considered joining the physicians individually in the malpractice suit but, for various reasons, he decided not to join. He sent an “intent to sue” only to the two Manhattan Medical Centers and its physicians. However, when the complaint was filed, the first Medical Center was not named. Thereafter, during discovery, the lawyer realized that the second Medical Center’s defense was based upon the comparative fault of the first Medical Center and its physicians. At this point, the statute of limitations had already expired, and the lawyer realized the potential of a legal malpractice claim for failing to join them. Thus, the lawyer then contacted his insurance company and referred the appellee to a new counsel.

The appellee and the second Medical Center, and its physicians, entered into a settlement agreement in the amount of $1,000,000, and then brought a legal malpractice action against the lawyer and his firm, which the Insurance Company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the “aggregate” amount applied. Specifically, the parties disputed whether the attorney’s failure to name the first Medical Center and each individual physician constituted independent wrongful acts or a single claim. So, the appellee filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because the lawyer committed multiple wrongful acts, the appellee claimed that he was entitled to the aggregate limits. The Insurance Company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act; that, since there was only one claim, the appellee was entitled to only $250,000 in coverage. The trial court agreed with the appellee and, on motion for summary judgment, entered a judgment in favor of the appellee for the aggregate limits. Based upon its interpretation of the policy, the trial court found that there were several acts of malpractice during the legal representation of appellees. Thus, the trial ruled that the appellees were entitled to the aggregate policy limits. The Insurance Company now appeals the said judgment.

The issues for the court’s determination is whether or not, pursuant to the insurance policy of the law firm the aggregate policy limit should apply where the appellee’s attorney committed multiple wrongful acts by failing to join several defendants in his medical malpractice action; whether or not, because each of the defendants had separate insurance coverage available to pay a damage award, appellee had multiple claims against his attorney.

The insurance company argues that appellee has only a single claim because he suffered one injury, that is, he did not receive his full recovery because the attorney failed to join all the proper defendants before the statute of limitations tolled; that even if the failure to sue each defendant is considered a wrongful act, these wrongful acts are related to the appellee’s sole malpractice claim against his attorney.

The appeal arises from a dispute regarding the policy limits of a legal malpractice insurance policy. The insurance policy in dispute is a “claims-made” policy which covers claims made against the insured during the policy period. The policy specifically provides that the insurance company shall pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period; that a claim means a demand received by the insurance company or an insured for money or services; and that a wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an insured. Under the conditions of the policy, the maximum amount that the insurance company will pay for each claim is the limit shown in the declarations as “per claim” for all claims and claims expenses arising out of or in connection with the same or related wrongful act; that this limit applies regardless of the number of persons that are insured under the policy or the number of claimants; that the aggregate, subject to the aforementioned condition, maximum amount that the insurance company will pay for all claims and claims expenses will not exceed the limit shown in the declarations as aggregate; and that all wrongful acts for which claims, or incidents which will later become claims, reported during the policy period are included.

As a rule, the construction and interpretation of an insurance policy is a question of law for the court. Such contracts are read in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

Here, the court finds that the Insurance Company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. Notably, there was but one demand for money, namely the lost recovery because of the failure to join various other defendants and thus one claim. Even if the appellee had multiple claims against his attorney, the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The California Supreme Court has already ruled in one case that, when a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained, there can only be a single claim under the attorney’s professional liability insurance policy. Applying that rationale to the case at bar, the appellee retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible defendants in his action. While the attorney’s negligent omission may be considered multiple wrongful acts, the appellee suffered only one injury, that is, an award that does not represent the full extent of his damages.

In sum, the alleged wrongful acts of the attorney were related and resulted in a single claim. While there were several wrongful acts, they were all related and constituted but one claim of legal malpractice under the policy language. Thus, the court finds that the judgment appealed from must be reversed and remanded for an entry of a declaratory judgment determining that the policy limit “per claim”, and not the aggregate limit, applies.
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This action was commenced by a man to recover damages for personal injuries allegedly sustained in a motor vehicle accident. He alleges that he sustained neck and back injury when the vehicle he was driving, which was stopped for a red light, was struck in the rear by a vehicle driven by a woman. More specifically, the man alleges in his bill of particulars that he suffered spinal injuries as a result of the subject accident. At a deposition conducted, he testified that he is employed as a laborer for a Bronx construction company, and that he missed 11 days of work due to his spine injuries.

The opponent woman moves for summary judgment dismissing the complaint on the ground that the man is precluded by Insurance Law from recovering for non-economic loss, as he did not sustain a serious injury within the meaning of Insurance Law. The woman’s submissions in support of the motion include copies of the pleadings; a transcript of the man’s deposition testimony; medical reports prepared by the complainant man’s treating chiropractor, and his treating neurologist; and magnetic resonance imaging (MRI) reports regarding the man’s cervical and lumbar regions prepared in February 2005. Also submitted by the woman in support of the motion is a sworn medical report prepared by the orthopedic surgeon. At the woman’s request, the orthopedic surgeon conducted an examination of the man on June 28, 2006, and reviewed various medical records related to the man’s alleged spinal injuries.
The orthopedic surgeon’s report states that the man presented with complaints of chronic neck and back pain, as well as an occasional limp. The report states, in relevant part, that the man exhibited full range of motion in his cervical and lumbar regions, with no palpable muscle spasm or tightness, during the physical examination. It states that the man stood erect, with no evidence of asymmetry, and that he moved easily during the examination. The report also states that the man demonstrated full range of motion in his upper and lower extremities; that there was no evidence of muscle atrophy or compression neuropathy; and that there was no evidence of any motor or neurological dysfunction. The orthopedic surgeon opines that the man suffered cervical and spine injuries as a result of the accident, and that both conditions have resolved. He further concludes that there was no evidence that the man suffers from any ongoing orthopedic dysfunction or disability.

The Brooklyn man opposes the motion for summary judgment, arguing that the proof submitted by the woman fails to establish legitimately that he did not suffer a significant limitation of use in his lumbar spine as a result of the subject accident. Alternatively, the man asserts that medical evidence presented in opposition raises a triable issue of fact as to whether he sustained injury within the significant limitation of use category of Insurance Law. The Court notes that although the affirmation by the man’s counsel states that a denial of benefits statement from the no-fault carrier, the insurance company was included with the opposition papers, no such statement was annexed thereto. In addition, while an affidavit by the man states that he treated with a doctor until September 2005, the doctor’s affidavit states that the man ceased treatment in July 2005, because of financial constraints.

Insurance Law 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.
An accused seeking summary judgment on the ground that a complainant’s negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a legitimate case that the complainant did not sustain a serious injury. When an accused seeking summary judgment based on the lack of serious injury relies on the findings of the accused party’s own witnesses, those findings must be in admissible form, and not unsworn reports to demonstrate entitlement to judgment as a matter of law. An accused also may establish entitlement to summary judgment using the complainant’s deposition testimony and medical reports and records prepared by the complainant’s own physicians. Once an accused meets the burden, the complainant must present proof in admissible form which creates a material issue of fact, or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form. However, if an accused does not establish a legitimate case that the complainant’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the complainant’s opposition papers.

Contrary to the conclusive assertions by the man’s counsel, the medical evidence presented by woman establishes legitimately that the man did not suffer a serious injury as a result of the accident. The Court notes that an accused who submits admissible proof that a complainant has full range of motion and suffers no disabilities as a result of the subject accident
establishes a legitimate case that the complainant did not sustain a serious injury, despite the existence of an MRI report showing a herniated or bulging disc. The burden, therefore, shifted to the man to raise a triable issue of fact.

A complainant claiming injury within the limitation of use categories must substantiate his or her complaints of pain with objective medical evidence showing the extent or degree of the limitations of movement and their duration. He or she must present medical proof contemporaneous with the accident showing the initial restrictions in movement or an explanation for its omission, as well as objective medical findings of limitations that are based on a recent examination of the complainant. In addition, a complainant claiming serious injury who ceases treatment after the accident must offer a reasonable explanation for having done so.

The man’s submissions in opposition are insufficient to raise a triable issue of fact. The affidavit by the man’s doctor improperly relies on unsworn reports of others in concluding that the man suffered significant limitations in spinal function as a result of the accident. Further, the man’s doctor’s affidavit states that on February 22, 2005, the man was sent for spinal rave of motion testing using a dual inclinometer and details the degrees of movement measured at that time. It states that range of motion testing using a dual inclinometer was performed again in March 2005 and provides the measurements taken, yet does not indicate who performed such testing. The doctor’s affidavit, therefore, is without probative value on the question of whether the man suffered a serious injury in the accident.

Moreover, the man failed to present competent medical proof contemporaneous with the accident showing significant limitations in spinal movement and the duration of such limitations. He also failed to provide evidence substantiating his allegations that he was forced to cease medical care just months after the accident, because his no fault benefits were terminated and he lacked the financial means to pay for such care. Finally, absent objective medical proof as to the significance or duration of the alleged spinal injuries, the man’s self-serving affidavit, which contains allegations of continued lower back pain and restricted movement, is insufficient to defeat summary judgment. Accordingly, summary judgment dismissing the complaint based on the man’s failure to meet the serious injury threshold is granted.
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A Manhattan man suffered serious as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury.

As a result, the attending Westchester surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

The man retained a law firm to investigate and initiate a medical malpractice action against the various physicians. Although the man’s counsel considered joining the Hospital physicians individually in the medical malpractice suit, for various reasons he decided not to join them and sent intent to sue only to the Hospital and Medical Center Regional and its physicians. When the complaint was filed, however, the Hospital was not named. During discovery, the man’s counsel realized that the Medical Center Regional’s defense was based upon the comparative fault of the Hospital and its physicians. At this point, the statute of limitations had expired, and the counsel realized the potential of a legal medical malpractice claim for failing to join them. The counsel contacted his insurance company. He also referred the man to a new counsel. The man settled with the Medical Center Regional and its physicians for $1,000,000, and then brought a legal medical malpractice action against his counsel and his firm, which the man’s insurance company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the aggregate amount applied. Specifically, the parties disputed whether the attorney’s failure to name the Hospital and each individual physician constituted independent wrongful acts or a single claim.

The man filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because his counsel committed multiple wrongful acts, he claimed that he was entitled to the aggregate limits. The counsel’s insurance company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act. Since there was only one claim, the man was entitled to only $250,000 in coverage. The trial court agreed with the man and on its motion for summary judgment, the court entered a judgment in favor of the man for the aggregate limits. The counsel’s insurance company appeals this judgment.

The insurance policy in question is a claims-made policy which covers claims made against the insured during the policy period. Specifically, the policy provides that it will pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period.

Claim means a demand received by the insurance company or an insured for money or services while wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an Insured.

The construction of an insurance policy is a question of law for the court. Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

The man contends the aggregate policy limit should apply where his attorney committed multiple wrongful acts by failing to join several accused parties in his medical malpractice action. Because each of these accused had separate insurance coverage available to pay a damage award, the man argues he had multiple claims against his attorney. However, the counsel’s insurance company asserts that the man has only a single claim because he suffered one injury – he did not receive his full recovery because the attorney failed to join all the proper accused parties before the statute of limitations tolled. Even if the failure to sue each accused is considered a wrongful act, the counsel’s insurance company argues these wrongful acts are related to the man’s sole medical malpractice claim against his attorney.

The counsel’s insurance company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. In this case, there was but one demand for money, namely the lost recovery because of the failure to join various other accused parties and thus one claim. Even if the man had multiple claims against his attorney the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The court considered whether two acts of negligence were related so that notice of the first act constituted timely notification of both alleged acts of negligence. The man’s first claim of insurance agency negligence was for the agency’s failure to procure primary insurance coverage. It then later claimed that the agency was negligent in failing to notify an excess carrier of a third party claim against the insured.

Courts have pronounced different analyses in determining what constitutes a related act. Under the analysis of the State Supreme Court, however, the question appears to be whether each of the claimed negligent acts contributes to, or causes, the same monetary loss. If the errors lead to the same injury, under the Supreme Court analysis, they are related. Under the analysis of the United States District Court, acts will not be related if they arise out of separate factual circumstances and give rise to separate causes of action.

In this case, the claim was for the entire amount of the man’s uncollected damages as a result of the failure to join several accused parties in the suit, and all of the acts of negligence caused or contributed to the inability of the man to collect the entire amount of his damages. Thus, the negligent acts were logically related in accordance with the policy definitions.

In a related case, the contractor attempted to argue that there were two claims because it had two sources of payment. Supreme Court rejected the argument and stated, that when, as in this case, a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained — there is a single claim under the attorney’s professional liability insurance policy. Applying that rationale to this case, the man retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible accused parties in his action. The attorney’s negligent omission may be considered multiple wrongful acts, but the man suffered only one injury — an award that does not represent the full extent of his damages.

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit “per claim” and not the aggregate limit applies in this case.
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On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

In order for a person to claim a serious person injury under the auspices of the New York Insurance Law, they must be able to prove that they suffered an injury that was invasive enough to alter their normal everyday lifestyle. In order to make that statement, the injured person must be able to demonstrate through medical records that they have sustained either a permanent loss of use, or partial percentage loss of use of a member of their body.

Alternatively, they can show a brain injury or spinal injury that is severe enough to have altered their lives and receives treatment. They may also file a 90/180 claim that contends that although they recovered from their injuries, they were incapacitated by them for 90 out of the 180 days that immediately followed the car accident. It is important that the injured person is able to demonstrate that they have been continually under the care of a doctor from the time of the accident until the time that they filed their suit. The court has been known to dismiss a gap in treatment for legitimate reasons if it can be properly documented.

In this case, the driver of the other car filed a motion for summary judgment asking the court to dismiss the case. The other driver contends that the man did not demonstrate proper documentation showing that he had sustained a serious injury under the guidelines of the New York Insurance Law § 5102(d). While he submitted several test results, they were missing original signatures and failed to have sworn doctor testimony upholding them. Further, the driver of the other car demonstrated that the man claims to have been disabled by the accident, however, there is evidence that he took a job at UPS four months following the accident date. Since that time, the man has not been seen by a medical professional for any of his injuries. Because, the other driver contends that the man has not proven his case under the statute as either permanent, or as a 90/180, the man asks the court to free him from liability and dismiss this case as frivolous.

The court reviewed the case and examined all records associated with it. The court is reluctant to grant summary judgment dismissing a case because New York Law considers that a person has a right to argue their case in court. When there is even the slightest chance that there may be arguable points of fact, then the case will not issue a summary judgment and will forward the case to court for trial. In this case, although the man had provided doctor’s letters, they were not sworn documents. The primary test result that he was depending on to make his case, was not signed or properly admitted. Further, the fact that the man had obtained employment within four months of suffering his injury and stopped all medical treatment for a period of two years before filing this claim is suspect. The man provided no explanation for his failure to obtain treatment for two years following the accident. With these facts in mind, the court approved the other driver’s request for summary judgment and dismissed the case against him.
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