This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.
Plaintiff Bianca Watler and her mother commenced an action to recover damages for personal injuries allegedly sustained in a car accidentthat occurred on Prospect Street in Kings County on October 25, 1996. The accident allegedly happened when a vehicle driven by defendant struck the rear of a vehicle operated by plaintiff, which was stopped due to traffic conditions on Prospect Street. The bill of particulars alleges that plaintiff sustained various injuries as a result of the collision, including a bulging disc at level L5-S1 of the lumbosacral spine; lumbar radiculopathy; right knee sprain/strain; cervical and lumbosacral sprains/strains; and “cervical paraspinal myofascitis with discogenic radiculopathy.” It further alleges that plaintiff, who sought treatment at the emergency department of Brooklyn Hospital Center immediately after the accident, was confined to home for approximately six months due to her injuries.
Defendant moves for summary judgment dismissing the claim of plaintiff on the ground that she is precluded by Insurance Law §5104 from recovering for non-economic loss, as she did not sustained a “serious injury” within the meaning of Insurance Law §5102 (d).
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.”
According to the court, a defendant 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”. ]). When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant’s own witnesses, “those findings must be in admissible form, i.e., affidavits and affirmations, and not unsworn reports” to demonstrate entitlement to judgment as a matter of law. A defendant also may establish entitlement to summary judgment using the plaintiff’s deposition testimony and medical reports and records prepared by the plaintiff’s own physicians . Once a defendant meets this burden, the plaintiff 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 a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiff’s opposition.
Contrary to the assertions by defense counsel in Queens and Westchester, the sworn medical report by the physician is insufficient to demonstrate prima facie that plaintiff did not suffer a serious injury in the subject accident. Although the physician concludes in his report that his examination revealed that plaintiff only has “minimal residual cervical sprain without functional deficit” and no evidence of residual lumbosacral sprain or other orthopedic disability, his report fails to indicate the objective tests performed to support these finding. Further, while the report states that plaintiff exhibited “good” cervical movement and “no loss” in rotation, lateral bending and extension in the lumbar region, it does not indicate the range of motion measurements taken during the examination. Moreover, the physician indicates in his report that plaintiff exhibited “20 degrees decreased flexion” in her cervical spine and did not offer any cause for such limitation other than the accident or show that such a limitation is insignificant.
The motion for summary judgment, therefore, is denied, as defendant failed to establish prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
Stephen Bilkis and Associates with its New York Car Accident Lawyer has expertise on how to assert a person’s rights within the bounds of law. It can help you as much as it helped other clients involved in similar situation. It has offices within New York Metropolitan area, including Corona, New York.