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.