Articles Posted in Bronx

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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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On 6 July 2006, plaintiff was involved in an automobile accident. Consequently, plaintiff filed a personal injury action against The Bronx defendant to recover damages for the injuries he sustained as a result of the accident. In opposition, defendant moved for a motion for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law.

The issue that was brought before the court for resolution was whether or not plaintiff has sustained a personal injury that is within the definition of serious injury under Insurance Law, and, as such, entitles him to recover damages from defendant.

As provided for under the no-fault law, in order to maintain an action for personal injury, a plaintiff must establish that a serious injury has been sustained. This is pursuant to the ruling of the court in the landmark case of Licari v. Elliot which was decided sometime in 1982. As a rule, 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; as held in the case of Alvarez v. Prospect Hospital, in 1986, and the case of Winegrad v. New York Univ. Medical Center, in 1985. Pursuant to the court’s ruling in the case of Lowe v. Bennett, which was decided by the 1st Department sometime in 1986, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff 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 plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. This was the Westchester court’s ruling in the cases of Licari v. Elliot and Lopez v. Senatore, in 1985. In support of a claim that plaintiff 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 plaintiff’s examining physician. Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant’s motion, to submit proof of serious injury in admissible form. Unsworn reports of plaintiff’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 plaintiff is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a plaintiff’s serious injury. As held in the cases of Gonzalez v. Vasquez in 2003 and Ayzen v. Melendez in 2002, unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a prima facie 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 plaintiff’s subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice; as ruled in the cases of Pichardo v. Blum in 1999 and Feintuch v. Grella in 2003. In any event, the findings, which must be submitted in a competent statement under oath, or affirmation, when permitted, must demonstrate that plaintiff sustained at least one of the categories of serious injury as enumerated in Insurance Law. For example, in the case of Parker v. DeFontaine, it was held that a medical affidavit, which demonstrated that the plaintiff’s threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a serious injury within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, a physician’s observation as to actual limitations qualifies as objective evidence since it is based on the physician’s own examinations. Besides, in the absence of objective medical evidence in admissible form of serious injury, plaintiff’s self-serving affidavit is insufficient to raise a triable issue of fact.

Here, defendant has established a prima facie case that plaintiff did not suffer a serious injury as defined in Insurance Law, for all categories. The defendant submitted, among other things, the affirmed reports of four independent examining and/or evaluating physicians, particularly, an orthopedist, a neurologist, two radiologists, and plaintiff’s verified bill of particulars.
According to Dr. AA, defendant’s independent examining orthopedist, in his affirmed report, he examined plaintiff on 5 February 2006; the examination revealed a diagnosis of resolved cervical and lumbosacral strains/sprains; and he concluded that plaintiff’s examination was non-focal and plaintiff was neurologically intact.

According to Dr. BB, defendant’s independent examining neurologist, in her affirmed report, she examined plaintiff on 7 February 2008; and the examination revealed a diagnosis of resolved post cervical and lumbar sprains.

According to Dr. CC and Dr. DD, defendant’s independent evaluating radiologists, in their affirmed report, plaintiff’s MRI of the cervical spine which was taken on 10 August 2006 revealed a diagnosis of multilevel disc dessication and degeneration, and posterior and anterior disc displacement as described in association with productive bony changes; they both opined that the findings were consistent with a chronic degenerative spinal disease or a spinal injury which was a pre-existing condition and was a long-standing discogenic disease; and they concluded that the findings most likely reflected natural wear and tear. On plaintiff’s MRI of the lumbar spine which was taken on 16 August 2006, both doctors found that it revealed a diagnosis of degenerated, herniated L5-S1 disc in association with productive bony changes; they both opined that the findings were also consistent with a chronic degenerative spinal disease or a spinal injury which was a pre-existing condition and was a long-standing discogenic disease; and they also concluded that the findings most likely reflected natural wear and tear.

Evidently, the defendant has submitted proof in admissible form in support of his motion for summary judgment, for all categories of serious injury. In addition, the defendant has also established a prima facie case for the category of 90/180 days. According to the plaintiff, in her verified bill of particulars, she was only confined to bed for four (4) days; she was only confined to home for five (5) days; and she was not confined to the hospital. These admissions clearly show that plaintiff was not curtailed from nearly all activities for the bare minimum of 90/180, as required by the statute.

Based on the evidence presented, defendant has indeed demonstrated that plaintiff did not sustain a serious injury. Thus, the burden then shifted to plaintiff to raise a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. Failure to raise a triable issue of fact requires the granting of summary judgment and dismissal of the complaint.

Here, plaintiff has failed to raise a triable issue of fact. In opposition to the defendant’s motion, plaintiff submitted the following: a physician’s affirmation of plaintiff’s orthopedist, Dr. A; a physician’s affirmation of plaintiff’s radiologist, Dr. B, pertaining to plaintiff’s cervical spine; a physician’s affirmation of plaintiff’s radiologist, Dr. B, pertaining to plaintiff’s lumbosacral spine; MRI reports of Dr. B pertaining to plaintiff’s cervical and lumbosacral spine; an attorney’s affirmation; and plaintiff’s own affidavit.

While the defendant’s independent examining radiologists opined in their affirmed report that their examination of plaintiff revealed a chronic degenerative spinal disease or a spinal injury which was a pre-existing degenerative condition in both the cervical and lumbar spines, plaintiffs’ experts nonetheless failed to indicate their awareness that plaintiff was suffering from such condition and failed to address the effect of these findings on plaintiff’s claimed accident injuries. Henceforth, as held in the celebrated case of Pommels v. Perez which was decided by the court sometime in 2005, plaintiff failed to rebut defendant’s claim sufficiently to raise a trial issue of fact. Moreover, the plaintiff has failed to come forward with sufficient evidence to create an issue of fact as to whether the plaintiff sustained a medically-determined injury which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days immediately following the underlying automobile accident. Under the rules, the record must contain objective or credible evidence to support the plaintiff’s claim that the injury prevented plaintiff from performing substantially all of her customary activities. 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 her usual activities to a great extent, rather than some slight curtailment. In the case at bar, plaintiff has failed to include experts’ reports or affirmations which render an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the subject automobile accident. As such, plaintiff’s submissions were insufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed her from performing her usual activities for the statutory period. Obviously, plaintiff’s claim that her injuries prevented her from performing substantially all of the material acts constituting her customary daily activities during at least 90 of the first 180 days following the accident was insufficient to raise a triable issue of fact, as held in the case of Graham v Shuttle Bay which was decided by the 1st Dept. sometime in 2001; the case of Hernandez v. Cerda which was decided by the 2nd Dept. sometime in 2000; and the case of Ocasio v. Henry which was also decided by the 2nd Dept. sometime in 2000. Moreover, plaintiff’s attorney’s affirmation was not an admissible probative evidence of medical issues. Plaintiff’s attorney has failed to demonstrate personal knowledge of the plaintiff’s injuries. What’s more, plaintiff’s affidavit and deposition statements were self-serving and were not given great weight. They were insufficient to raise triable issues of fact.

Based on the evidence presented, plaintiff clearly failed to raise a triable issue of fact. Plaintiff’s submissions were undoubtedly insufficient.

In sum, plaintiff has not sustained a serious injury within the meaning of the Insurance Law. Thus, the defendant’s motion for summary was granted in its entirety and the plaintiff’s complaint was dismissed as to all categories.
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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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Two construction and repair crewmen from the water district were riding in the car of a co-worker on their way to work when their car was hit in the rear end by a truck driven by an employee of an iron works company.

Both the Bronx crewmen were injured. The other crewman, the one sitting in the back sustained spinal injury from the force of the impact of the collision. His spinal injury consisted of bulging discs in the cervical spine and in the lumbar spine. Because of these injuries, he suffered painful muscle spasms, migraine headaches and numbness in the right arm and shoulder. He was treated in the hospital and was confined to bed for six weeks following the accident. After the confinement, the crewman could not return to his regular job as repair crewman because he could not lift materials. He had difficulty bending down and he could not sit or stand for long periods of time.

Both the crewmen filed a suit in damages against the two drivers of the motor vehicles involved in the car accident. They both claimed compensation for damages under the Insurance Law for the spinal injuries and fractures they sustained as a result of the accident. The driver from the iron works company filed a motion for summary judgment alleging that the injuries sustained by the crewmen were not serious injuries and so they are not compensable injuries. The L.I. crewman was examined by independent physicians but the physicians examined the crewmen two years after the accident.

A serious injury is one which brings about loss of life or loss of a limb, substantial disfigurement; loss of a fetus or loss of the use of an organ or system. If the injury is not permanent, it should prevent the injured person from performing his usual and customary activities for ninety to one hundred eight days after the accident.

Here the crewman did not allege that he permanently lost the use of any body part. He did prove that the injury he sustained in the accident limited his physical activity. He was not able to do the customary activities or perform the regular work he used to perform prior to the accident. He alleged that his neck and back had limited range of motion after the accident.
The finding of loss of range of motion in the cervical spine and lumbar spine cannot be based on the mere complaints of the crewman. There must be objective medical tests and diagnostic methods used to arrive at the findings of loss of range of motion.

The fact of having limited use of the spine and the fact of the loss of range of motion are both issues of fact which must be proven. There must be documentation by medical professionals who will attach the results of medical tests, x-rays, CT Scans or MRI scans on which they will base their opinions.

The independent physicians who examined the crewman one year after the accident based their opinions on the MRI and CT Scans of the crewman taken at or around the time of the accident. They themselves did not subject the crewman to MRIs or CT Scans. The independent physicians did not even mention in their report that they conducted range of motion tests themselves. They based their own report on the same range of motion tests conducted at or around the time of the accident. The reports of the attending physicians of the crewman stated that he had significant loss of range of motion in his cervical and lumbar spine.
Thus, the defendant iron works company failed to submit admissible and credible proof on its motion alleging that the crewman did not sustain serious injury. The case is remanded for trial to determine the issue of liability for the serious injury.
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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident on June 24, 2006 at approximately 8:45 a.m. The accident occurred at Hill Avenue at its intersection with Hempstead Turnpike, Hempstead, New York. Plaintiff alleges that he was stopped at a red light when the vehicle owned and operated by defendant rear-ended plaintiff’s vehicle. The police accident report states that “motor vehicle #1 in collision with motor vehicle #2.”

In his bill of particulars, a source said that plaintiff alleges that he sustained the following injuries: subligamentous central posterior disc herniation at C4-5, subligamentous central posterior disc hernation at C5-6, impinging on the anterior aspect of the spinal canal posterior lumbar herniation at L4-5, and straightening of the lumbar curvature.

A Lawyer said that, defendant moves for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). In support thereof, defendant relies uponplaintiff’s deposition testimony and an affirmed medical report of the doctor. At his examination-before-trial, plaintiff testified to his inability to perform activities due to his injuries sustained in the accident. Specifically, The Bronx plaintiff was physically restricted and not able to swim, mountain bike and exercise.

On June 8, 2010, the doctor performed an independent orthopedic evaluation of plaintiff. His examination of the cervical spine revealed “maintenance of the normal cervical lordosis. Range of motion reveals flexion to 50 degrees (50 normal), extension to 45 degrees (45 normal), right and left lateral bending to 45 degrees (45 normal) and right and left rotation to 80 degrees (80 normal). There is right and left sided paracervical tenderness. There is no spasm noted upon palpation. Compression and Spurling tests are negative. Deep tendon reflexes are 2+ and equal in the upper extremities. Upper extremity strength is 5/5. There is no noted atrophy. Sensation is intact.” His examination of the thoracolumbar spine revealed “maintenance of the normal lumbar lordosis. Range of motion of flexion is to 90 degrees (90 degrees normal), extension to 30 degrees (30 degrees normal), right and left lateral bending to 30 degrees (30 degrees normal) and right and left rotation to 30 degrees (30 degrees normal). Straight leg raise testing is negative, performed to 90 degrees bilaterally in the sitting position. There is no paralumbar tenderness. There is no spasm noted upon palpation. Lasegue and Fabere tests were negative. Deep tendon reflexes are 2+ and equal. Lower extremity strength is 5/5. Sensation is intact. There are no signs of lower extremity atrophy.” His impression was: cervical sprain, resolved; lumbar sprain, resolved. Finally, he opined that plaintiff has “no orthopedic disability at this time and that there is no residual or permanency.”
The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

The Manhattan Court said that, as a proponent of the summary judgment motion, defendant had the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The defendants established their prima facie entitlement to judgment as a matter of law by submitting, the affirmed medical reports of the doctor who examined plaintiff in 2010 and found no significant limitations in the ranges of motion with respect to any of his claimed spinal injuries, and no other serious injury within the meaning of Insurance Law § 5102(d) causally related to the collision.

The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that she sustained a serious injury or there are questions of fact as to whether the purported injury, in fact, is serious. In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d).

Plaintiff must come forth with objective evidence of the extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate. 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 a body part.

It has been repeatedly held that “the mere existence of herniated or bulging discs, and even radiculopathy, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration”.
Moreover, “a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI which shows herniated or bulging discs “.

In opposition to the motion and in support of his cross-motion, plaintiff submits, the parties’ deposition testimony; the police accident report. Contrary to plaintiff’s contention, he has not raised a triable issue of fact as to whether he sustained a serious injury as defined by Insurance Law §5102(d). The affirmations from plaintiff’s chiropractors lack probative value as they are not in proper form. Moreover, these chiropractors do not set forth any foundation or objective medical basis supporting the conclusions they reached.

The remaining submissions of plaintiff, which consisted of unaffirmed magnetic resonance imaging reports of plaintiff’s lumbosacral spine and cervical spine injury is also without probative value as they are unaffirmed. In addition, plaintiff failed to explain or address the prolonged gap in medical treatment. Finally, plaintiff has not sustained his burden under the 90/180 day category which requires plaintiff to submit objective evidence of a “medically determined injury or enforcement of a non-permanent nature which prevents the injured person from performing substantially all of the natural 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”. 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.”

Specifically, plaintiff has no admissible medical reports stating that plaintiff was disabled, unable to work or unable to perform daily activities for the first ninety (90) days out of one hundred eighty (180) days, Plaintiff is only able to proffer his own self-serving proof that he missed 3-4 days of work; that he couldn’t go swimming in the ocean while on a working trip to Mexico; that he couldn’t go mountain biking anymore; or exercise as frequently as he used to.
In light of our determination, plaintiff’s motion for summary judgment on the issue of liability has been rendered moot. Accordingly, the Court held that the plaintiff’s motion is denied. The Defendant’s motion is granted. It is hereby ordered, that the plaintiff’s Complaint is dismissed.
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This action was commenced to recover for personal injuries allegedly sustained by a man as a result of a motor vehicle accident that occurred on or about October 20, 2004. On that date, the Bronx complainant man was riding his bicycle when a taxi cab owned and operated by the accused allegedly hit the rear tire of the complainant man’s bicycle.

The driver and the Brooklyn taxi company have moved for summary judgment, arguing that the accused man has not met the serious injury threshold as set forth in Insurance Law. In support thereof, the accused driver and taxi company have submitted, among other things, an affirmation of the counsel, the complainant man’s verified bill of particulars, the complainant’s deposition testimony, a report from a radiologist who reviewed an MRI examination of the man, and a report from a neurologist who conducted an independent medical examination of the complainant man.

The complainant man served a verified bill of particulars which alleged that he suffered numerous personal injuries as a result of the. The spine injury claimed by the man was to be of a permanent nature.

The complainant man was physically examined by a neurologist designated by the accused parties. The neurologist found, as indicated in his sworn report of event date, that the woman exhibited no signs of any lateralizing neurological deficits. Further, the neurologist found no neurologic residual or permanency based upon his examination. He concluded that any head trauma and spinal injury had resolved, and that the man was capable of performing normal activities of daily living, including gainful employment activities, without restrictions.

In addition, on or about August 31, 2006, another doctor reviewed the MRI film of the man’s cervical spine performed on December 8, 2004, approximately eight weeks after the accident, and found evidence of spine injury. However, she opined that such degeneration could not have occurred in less than six months time. She also found bulging at the spine, but stated that the bulging was related to loose ligaments and was temporary in origin. Based upon the foregoing findings, as well as the assertion that the complainant man missed only two days of work as a result of the accident, the driver and the taxi company argue that the man has not satisfied the serious injury threshold set forth in Insurance Law. The accused parties contend that the complainant’s alleged soft tissue injuries do not constitute a serious injury.

In opposition to the application, the man has provided recent medical evidence of his limitations. Since the accident, he has been regularly treated by a doctor who performed a complete re-examination of him on August 7, 2007, and that he has also received chiropractic care, physical therapy, and pain management. He submitted an affirmation of a doctor, dated October 9, 2007, wherein he opines that he sustained ruptured disc, and that based upon the examination of August 7, 2007, the complainant man has severely restricted cervical range of motion of a permanent nature. The doctor attributes the foregoing trauma to the injuries that the man suffered in the accident.

In addition, the complainant man has submitted an MRI report of a radiologist dated December 9, 2004, who interpreted a December 8, 2004 MRI of the man’s cervical spine. He found that the complainant man suffered spinal injury with flattening of the left, ventral margin of the cod and left spine. By affirmation dated September 21, 2007, the radiologist indicates that if called as a witness, he would testify in conformance with his report. The complainant man argues that the foregoing submissions establish that he has suffered a serious injury, in that the medical records and reports, which are based upon objective tests and diagnostic studies, show that the man has sustained a significant limitation to his cervical spine as a direct result of the injuries suffered in the subject accident.

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 complainant sustained a serious injury could be determined by the courts as a matter of law on a motion for summary judgment.

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 clays 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 complainant must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the complainant’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 complainant man.

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. Once an accused meets this burden, the complainant 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.

The Court finds that the driver and the taxi company’s submission were sufficient to establish that the complainant man did not sustain a serious injury as a result of the accident. The burden, therefore, shifted to the complainant to raise a triable issue of fact. In opposition, the complainant presented competent evidence, including the affirmation of another doctor dated October 9, 2007, substantiating his claim that his injuries caused a significant limitation in the use of his cervical spine. The Court finds that such submission was sufficient to rebut the driver and the taxi company’s legitimate showing of no serious injury. Accordingly, the motion by the accused parties for summary judgment dismissing the man’s complaint on the grounds that as a complainant, he failed to sustain a serious injury as that term is defined by Insurance Law is denied.
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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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On March 12 of 2010, a school security guard was struck by the car of one of the parents while attempting to assist her with a traffic issue. He approached her car as she sat in the traffic line to drop off her child. After she pulled in, a school bus pulled in behind her. Her vehicle was blocked. The Westchester security guard approached her vehicle from the front. As he passed in front of her car, she inexplicably drove forward striking the security guard. He incurred a personal injury that resulted in a lawsuit against the woman and her insurance company, but also the owner of the car and their insurance company.

The car was owned by a vehicle leasing company. They had an internal policy against leasing cars to people with revoked or suspended driver’s licenses. Upon investigation, the security guard had discovered that the car had been leased by the woman’s boyfriend who had a restricted driver’s license. The security guard maintains that the company employee violated policy when he leased the car to the man. The man’s driving record clearly indicating that he was not a safe driver as per the standards set by the leasing company itself. The security guard believes that if the leasing company had not leased the car to the man in violation of their own internal policy, he could not have loaned it to his girlfriend, and she would not have hit him with it causing his injury.

The security guard maintains that he was injured so severely as to have to miss several days of work and suffering from injuries so severe that they have altered his lifestyle. He stated that he had a spine injury, head injury, hip and knee injuries that required surgery. He stated that he is no longer able to play ball with his grandchildren or to maintain a normal lifestyle.

The Bronx vehicle leasing company filed a motion for summary judgment based on the fact that they had no way of knowing that their leasing agent had taken it upon himself to violate policy and lease the car to the man with the restricted driver’s license. They maintain that they do not support the decision of their employee and that the employee was disciplined for his violation of policy. They maintain that they are not responsible for the accident and that the injured man will have to take his case up with the insurance company that the woman had personally. The company asked the court to direct that they be removed from the lawsuit and found to not hold any liability toward the security guard or his injuries.

The woman and her insurance company also requested that the court dismiss the case. Their contention being that the injured man had not made a sufficient case to demonstrate that he had suffered a severe injury as defined in the Insurance Law of New York State. In order for the injured man to have a case under this statute, he must be able to prove through certified and sworn medical testimony that he has lost the use of a body part, incurred a severe spinal injury or brain injury, or have been unable to perform his normal activities for 90 of the following 180 days after the accident.

The security guard produced numerous doctor reports, tests, and testimony to demonstrate that he had sustained a partial use of his leg from the knee injury. His medical witnesses also produced tests that demonstrated that he had been unable to perform normal activities for 90 of the 180 days for that claim. The court determined that the motion to relieve the rental car company of liability should be granted, but the motion to dismiss the claim against the woman and her insurance company will proceed to trial.
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A case against the State of New York was filed by the administrators of Tonya M. Hilliker’s estate. The claim was that two New York State troopers acted with “reckless disregard” in pursuing another vehicle. They allege that Ms. Hilliker of The Bronx died because of that recklessness. The car that they were chasing hit other vehicles. This happened on April 19, 2003 at approximately 2:30 A.M. in the City of Glens Falls.

In the evidence presented, it showed that Trooper Matthew Gilbert of Westchester was being closely followed by a white car. In the vehicle with him was Trooper Kevin Bouyea, who was sitting in the front passenger seat. The white car turned left from Main Street to South Western Avenue. The troopers continued to travel the main street and turned left onto Luzerne Road to see why the other vehicle was following them. A Lawyer mentioned that it was the time that the troopers noticed the white car heading straight toward them. It was going the opposite way on a one-way street. Trooper Gilbert avoided getting hit by pulling the patrol car on the side of the road. The white car passed them. In pursuit of the other vehicle, Trooper Gilbert made a U-turn and activated their emergency lights. The white car did not immediately turn on Broad Street. What the troopers did was to activate their siren. There was no evidence of traffic on Broad Street at the time of pursuit.

While on Broad Street, the speed of the white car was at 80-85 miles per hour, and the troopers were at 70 miles per hour when they were trying to get the plate numbers. They said that they slowed to about 50 miles per hour after getting the license plate as they were concerned about the safety if they continued that kind of chase. They lost sight of the vehicle for a few seconds after it turned at South Street. When they saw it again it was going into a bouncing stop. They exited their vehicle with guns drawn, said a Lawyer. At the scene Timothy Culligan said he was talking to Ms. Hilliker and Walter LaBarge. He was inside his car while the two were standing outside. This was when his car was struck by the white car. In the reconstruct, it was determined that the white vehicle was driving at least 82 miles per hour. For all the witnesses, they said that after the crash the police officers were immediately there about 10 feet away from the white car. This is contrary to the evidence of the lack of contact from the trooper’s vehicle, and that lack of skid marks made by the trooper’s car. Although, when the statement of Trooper Gilbert and Trooper Bouyea were compared there was a difference. A reporter got information that, Trooper Bouyea said he saw the white car hit other vehicles, which meant that they would have been near enough. There is also the undeniable knowledge of both troopers knew at that time, there are a lot of people in that area.

The court chose to go with the hard evidence. The eye witness testimonies as they said are not very accurate. It contradicted the evidence like the skid marks not being on the street. A Lawyer said that the court stated even if the statement of the troopers did not match, they still exercised caution as they slowed down after they had gotten the license plate. court them decides that this is subject to the immunity.
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This case involves a ruling of the Court wherein the motion to suppress the blood test of the defendant on the ground that the court order and supporting affidavit are defective was denied.

A car accident occurred in Bayvile Avenue in the Incorporated Village of Bayville between two vehicles. The responding officer, who arrived at 2:22 A.M., noticed that the defendant was the driver of the overturned car and had some facial lacerations in the vicinity of the forehead and one of his cheeks. The other car was a red car who sustained severe damages in the front and passenger side which led to the wrongful death of one of the passengers. Drivers of both passengers were transported to the community hospital. Police officer arrived at 2:55 A.M. Upon inquiry, defendant said to the Police Officer that he was originally heading westbound on Bayville Avenue.” The Police Officer then asked the defendant, “are you sure you were westbound or eastbound?” and “were you headed toward your parents’ house or away from it?” The defendant “finally said that he was heading towards his parents’ house which was eastbound”.

While talking with the Brooklyn defendant, the Police Officer noticed an odor of alcoholic beverages on defendant’s breath. He described the odor as moderate level which wasn’t overly strong but it was noticeable even the officer was two feet away during the conversation. The Police Officer told the defendant that he is being placed under arrest for suspicion of driving while intoxicated. At 3:50 A.m., the Police Officer asked the defendant to submit himself to a chemical analysis of his breath. The defendant consulted his lawyer and thereafter refused to take the test. Following the refusal, which was about 4:20 A.M., efforts were made to get a court order. At approximately 5:30 A.M., a court order had been obtained and blood was taken from the defendant at 5:50 A.M.

The defendant was charged for Manslaughter in the Second Degree, Vehicular Manslaughter in the Second Degree, (two counts), Assault in the Second Degree, Vehicular Assault in the Second Degree, (two counts), and Operation of a Motor Vehicular While Under the Influence of Alcohol, (two counts). The defendant moved to suppress, (1) certain statements he made which he claimed were involuntary within the meaning of CPL 60.45 and (2) the results of the defendant’s blood test.

The court held that (1) the moderate odor of an alcoholic beverage on the breath of the defendant coupled with (2) a head on two car collision on a two lane roadway divided by a double yellow line, and (3) the defendant’s statements, (a) that he did not notice the other vehicle until it was in his lane and (b) that he was going west when in fact he was going east, sufficiently established a probable cause for the arrest of the defendant.

The Bronx Court further held that following the issuance of the court order, (5:27 A.M.) there was no unreasonable delay in the administering of the test (5:50 A.M.). And the time (2:20 A.M.) from the accident and the test refusal, (4:20 A.M.) to the drawing of the blood, (5:50 A.M.) from the defendant is not so remote as to make as a matter of law the results irrelevant to the central question of the defendant’s blood alcohol count at the time of the accident. Accordingly, the motion to suppress the results of the defendant’s blood test on this ground was denied.

Moreover, the court said that the purpose of the issuance of the said court order is only for the taking of blood from a designated person and there are no other variables or discretionary factors involved. From the Court’s examination of the application and the order, all the requirements of Vehicle and Traffic Law Section 1194-a were met. Accordingly, the motion to suppress the court ordered blood test of the defendant on the grounds that the court order and supporting affidavit are defective was denied.

The Court further noted that the defendant did not dispute that a court order was obtained and that he did not claim that he or anyone else demanded to see it. The Court notes that Section 1194-a of the Vehicle and Traffic Law does not require any showing of such an order to the defendant or the personnel performing the chemical test.

As to the statements made by the defendant at the hospital, the Court held that the defendant was not in custody, that the statements were voluntary, and that the matter clearly was still in the investigative stage. The Court further found that the defendant’s statements were not obtained from him by any threats, force, improper conduct, undue pressure, by means of any promise or in violation of such rights as he derives from the constitutions of this State and the United States. Accordingly, the motion to suppress defendant’s statements was denied.
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