Articles Posted in Nassau

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This is an action to recover damages for personal injuries allegedly sustained by plaintiff wife as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, approximately 500 feet west of South Oyster Bay Road, in the County of Nassau. New York on May 13. 2008. The accident allegedly occurred when the vehicle operated by defendant and owned by the other defendant struck the rear of the vehicle operated by plaintiff husband while it was stopped in traffic. Plaintiff at the time of the accident was a front seat passenger in the vehicle operated by her husband,. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject accident, including straightening of the cervical and lumbar curvature; disc bulges at levels C3 through C6 and level L4-L5; vertebral subluxation complex; and derangement of the left shoulder. Plaintiff alleges that she was confined to her bed and home for approximately two days immediately after the accident. Plaintiff further alleges that she was totally incapacitated from her employment as a registered nurse at the Hospital for approximately three days following the car accident and continues to be partially incapacitated from her employment to date.

A report said that, defendants now move for summary judgment on the basis that plaintiffs alleged spinal injuries do not meet the “serious injury” threshold requirement of Insurance Law § 5102(d). In support of the motion, defendants submit a copy of the pleadings, plaintiffs’ deposition transcript, and the sworn medical reports of the doctors. At defendants’ request, a neurologist, a chiropractor, and a physiatrist licensed in medical acupuncture, conducted independent examinations of plaintiff on September 23, 2008. A Lawyer said that, plaintiff opposes the instant motion on the ground that defendants failed to meet their burden of establishing that her injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102(d). Alternatively, plaintiff asserts that she sustained spinal injuries within the “limitation of use” and the “90/180 days” categories of serious injury as a result of the accident. In opposition to the motion, plaintiff submits her own affidavit, the affidavit of her treating chiropractor, , and the sworn medical reports of her doctors.

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

The Suffolk Court said that it has long been established that the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”. Therefore, the determination of whether or not a plaintiff has sustained a “serious injury” is to be made by the court in the first instance.

Insurance Law § 5102 (d) defines a “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.”

A defendant seeking summary judgment on the ground that a plaintiffs’ 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, such as, affidavits and affirmations, and not unsworn reports” to demonstrate entitlement to judgment as a matter of law. A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians.
Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for “serious injury” under New York’s No-Fault Insurance Law. 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 plaintiffs opposition papers.

Initially, the Court notes that the report submitted by defendants’ chiropractor, is inadmissible, inasmuch as it was not sworn to before a notary or other authorized official does not allow for a chiropractor to affirm the truth of his statement with the same force as an affidavit. Thus, defendants’ failure to submit the chiropractor’s report in admissible form requires that it be excluded from consideration.

However, defendants have established their prima facie burden that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The reports of defendants’ various experts state that plaintiff has full ranges of motion in her cervical and lumbar regions when compared with the normal ranges of motion for those areas. The reports also state that although plaintiff complains of minimal tenderness upon palpation over the cervical and lumbar spines, no muscle spasm is elicited when the cervical or lumbosacral musculature is palpated and that there is no tenderness upon palpation of the thoracic spine. The reports further state that the cervical and lumbar spines sprains that plaintiff sustained as a result of the subject accident have resolved and that plaintiff is capable of performing all of her daily living activities without restriction. Furthermore, reference to plaintiffs own deposition testimony sufficiently refuted the “limitation of use” categories of serious spinal injury and the “90/180 days” category under Insurance Law § 5102(d).

Therefore, the burden shifted to plaintiff to come forward with competent admissible medical evidence based on objective findings, sufficient to raise a triable issue of fact that she sustained a “serious injury”. A plaintiff alleging an injury within the limitation of use categories must present either objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration in order to prove the extent or degree of physical limitation he or she sustained. A sufficient description of the “qualitative nature” of plaintiffs limitations, with an objective basis, correlating plaintiff’s limitations to the normal function, purpose and use of the body part may also suffice. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

In opposition, plaintiff raised a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Plaintiff relies upon the affidavit of her treating chiropractor, which states that he initially began treating plaintiff on May 2, 2008 and continued to treat her until February 2010. Dr. Wright’s affidavit reveals that plaintiff had significant range of motion limitations in her cervical and thoracolumbosacral regions contemporaneous with the subject accident, and that those limitations still were present when he re-examined plaintiff on September 25, 2010. He opines that plaintiff’s range of motion limitations are permanent and are the direct result of the subject accident. The report further states that the spinal injuries plaintiff’s sustained as a result of the accident will “inhibit her ability to carry out her normal living activities of daily living, which involve prolonged sitting, standing, bending, walking, lifting or extreme physical exertion.”

Contrary to defendants’ contention, plaintiff adequately explained her gap in treatment. The doctor’s explanation for the gap in treatment essentially is that plaintiff reached her maximum medical improvement and any further treatment would have merely been palliative in nature. Furthermore, inasmuch as plaintiff established that at least some of her injuries meet the “No Fault” threshold, it is unnecessary to address whether her proof with respect to other injuries she allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment. Accordingly, defendants’ motion for summary judgment is denied.
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When a vehicle has been involved in a traffic accident, it is not uncommon for issues relative to the ownership of the vehicle to play a part in the venue of the hearing. Venue is the location in which the court will conduct any hearings relative to the case at hand. In order for the court to determine an appropriate venue for a case, it generally takes several items into consideration. Most of the time, such as in criminal trials, the venue for the case is the location where the incident occurred. If a robbery happens in Brooklyn, New York, then the Superior Court of Kings County and not the Superior Court of Queens County will hear the case. However, in civil cases and Family Court, the rules about Venue are much more flexible. Rather than being relative to a particular incident location, it is generally based on the county of domicile for one or both of the participants. If the case involves a business, it is much more likely that the case will be tried in the court that is located in the county where the business maintains its main base of operations.

On October 1, 1982, a traffic accident occurred in the Village of Freeport in Nassau County. The passenger in one of the vehicles, filed a personal injury lawsuit. She named the business that the other driver worked for in her lawsuit. The truck that the man was driving was owned by a business that had their primary offices in Kings County. The business had leased the truck from a truck leasing company that operated out of Nassau County. While the case was waiting for trial, the headquarters of the company moved from Kings County to Nassau County.

Originally, the venue for the car accident case was set for Kings County where the business headquarters was located. Following the move of the business from Kings County to Nassau County, the owner filed a motion to change the venue of the case from Kings County to Nassau County. Originally, the court denied the motion. The owner of the business filed an appeal of the decision.

The Supreme Court reviewed the request and determined that the original trial court had been wrong when they denied the request to change the venue of the hearing from Kings County to Nassau County. The reasoning was beyond comprehension for the appeal court. It was only logical that the case should be heard in Nassau County. The business headquarters was located in Nassau County. The accident occurred in Nassau County. The police officers who were on the scene and investigated the circumstances of the accident are Nassau County Police Officers. Even the hospital where the complainant was taken following the accident was located in Nassau County. Therefore, all of the witnesses that would be called to court to testify would be either living or employed in Nassau County. Making them travel to Kings County for the trial of the case would have posed an undue hardship on everyone involved in this case. There were no notes about why the original trial court had refused to transfer the case to Nassau County. However, logic prevailed when the decision was appealed and the case was subsequently transferred to the courts of Nassau County.

Sometimes, courts make mistakes in judgment. Courts are made up of people who are each assigned specialized jobs. They must all communicate clearly and with good communication skills in order for the court to function as it should. When someone makes a mistake, it is important that steps be taken as soon as possible to correct that mistake. That is when the appeals court is brought in to review decisions.
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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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On August 24, 2002 nonparty driver was driving a van with eight passengers, one of whom was an adult and seven of whom were children. While driving on a divided highway in Pennsylvania, the driver lost control of the van when the right rear tire blew out. During the resulting crash, the van barrel-rolled across the median and became airborne before landing in the lanes of oncoming traffic. All of the children were ejected from the van and sustained varying degrees of injury. The adult passenger, who remained in the vehicle, died. The appellant lawyer was retained to litigate an action on behalf of the estate and the husband of the deceased, and on behalf of these five infant passengers.

Appellant based her action upon conclusion that the tire at issue had been improperly repaired and was not the proper size for the van. Second, she concluded that the van had a faulty liftgate latch, which allowed the liftgate to open during the car accident. Consequently, she named the manufacturer of the van as a defendant.

Appellant lawyer requested an award of an attorney’s fee in a sum consistent with her retainer agreement, representing one third of the net settlement from the manufacturer of the van and 25% of the net settlement from the driver’s insurer. The Supreme Court approved so much of the proposed infant’s compromise order as concerned the amounts recovered by the infant plaintiffs, but awarded appellant lawyer an attorney’s fee in a sum representing approximately 25% of the aggregate net settlement. The lawyer appealed.

In affirming the infant’s compromise order, the court said that Judiciary Law § 474 expressly exempts, from the general rule, a contingency fee agreement between an attorney and a guardian of an infant, and provides that such agreements are always “subject to the power of the court, as hereinafter provided, to fix the amount of such compensation.” Pursuant to the statute, the court “shall proceed summarily to determine the value of the services of said attorney, taking such proof from either the attorney or the guardian by affidavit, reference or the examination of witnesses before the said court, judge or surrogate, as may seem to be necessary and proper, and shall thereupon make an order determining the suitable compensation for the attorney for his services therein”. Consequently, in rendering a determination as to “suitable compensation” within the meaning of Judiciary Law § 474, the court must determine the reasonable value of the legal services provided in light of all of the facts and circumstances, with consideration given to any agreement as to compensation, and award an amount consistent with such a determination and with the court’s duty to ensure fair and adequate compensation for the infant. Here, applying this standard, we find that the attorney’s fee awarded by the Supreme Court is “suitable compensation” within the meaning of Judiciary Law § 474.

Consequently, while the amount of the recovery was commensurate with the number of injured parties, the time and effort needed to investigate and prosecute the case was not. Rather, although some factors varied as between the injured parties, such as the nature and extent of their injuries, the core inquiries into causation and liability required no more effort than that necessary to litigate the action on behalf of only one injured party. Moreover, there were more injured parties to be compensated from the same limited pool of funds. Finally, the court note that the requested attorney’s fee of one third of the recovery from the manufacturer van represents the upper limit, in general, of what is deemed reasonable under the rules of the Court (see 22 NYCRR 691.20 [e]; cf. 22 NYCRR 603.7 [e]). Nassau and Westchester have similar laws.

In light of all of these facts and circumstances, and weighing the competing interests, the court find the amount of the attorney’s fee awarded-approximately 25% of the net aggregate settlement-to be suitable compensation.
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This is a case where the court ruled that the motion by plaintiff for summary judgment on the issue of liability or fault but not as to serious injury is granted. However, the cross motion by defendant for summary judgment dismissing the complaint on the grounds that plaintiff has failed to sustain a “serious injury” within the meaning of Ins. Law §5102 is denied.

This is an action arising out of a hit in the rear car accident that occurred on May 15, 2003, on Glen Cove Road at or near Pound Hollow Road, Nassau County. Plaintiff was struck in the rear by defendant’s vehicle while stopped for a red traffic light. There is no claim that plaintiff had made any short or sudden stop or turn. Plaintiff’s examination before trial testimony states that plaintiff’s vehicle was stopped for a red traffic light. As the light turned to green but before he began his forward motion, plaintiff’s vehicle was struck in the rear by a vehicle driven by the individual defendant and owned by the corporate defendants. Defendant testified that at the time of the car accident, plaintiffs vehicle was stopped, his view was unobstructed and there was nothing that prevented him from coming to stop before hitting plaintiffs vehicle. Although defendant posits that plaintiff testified that the traffic light had turned to green as the impact occurred, it is clear that his foot was still on the brake and that he had not begun to move.

According to the Suffolk court, there is no competent evidence to dispute plaintiff’s evidence that defendant’s vehicle struck the plaintiffs vehicle in the rear. The submission in support of the motion by plaintiff has established entitlement to judgement thus shifting the burden to defendant to rebut the motion by submitting proof in evidentiary form showing the existence of triable issues of fact. Here the defendant has failed to establish the existence of triable issues of fact on the issue of liability or fault and the Court finds no material fact issues requiring a trial with respect to the issue of fault.

The court ruled that a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle.

The following vehicle was under a duty to maintain a safe distance between his vehicle and the vehicle ahead. Vehicle and Traffic Law § 1129 [a].Leal v. Wolff, 224 AD2d 392 (2d Dept. 2005). In opposition defendant relies solely on the EBT testimony of the parties. The affirmation of defendant’s attorney, which fails to rely on any personal knowledge, is lacking in evidentiary value. The Court has not considered the police accident report attached to the moving papers of plaintiff because it is hearsay and inadmissible unless a hearsay exception applies. Based on the foregoing, the motion by plaintiff for summary judgment on the issue of liability and fault, except for the issue of serious injury is granted.

The Court held that within the context of the defendant’s burden, when presented with claims which include shoulder injury or bulging or herniated discs, defendant through medical experts must demonstrate that such conditions are not causally related to the subject car accident or that they do not constitute a “serious injury”.

In the Bill of Particulars plaintiff alleges having sustained: right shoulder injury with impingement, disc bulges, radiculopathy, spasms, straightening of the spinal curvature and related sequelae.

In order to support their application for summary judgment, the defendants were compelled to present competent proof in admissible form demonstrating that plaintiff did not suffer a serious injury under any of the four categories cited.

Based on the foregoing the Court finds that defendants have failed to meet their burden of making out a prima facie showing that plaintiff did not suffer a “serious injury” under the Insurance Law. Insurance Law § 5102(d).

Where the defendant fails to meet the initial burden of establishing prima facie entitlement to judgment as a matter of law, the court need not consider whether the opposition papers are sufficient to raise a factual issue.
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In this case, the Court ruled that Section 12.0 of Ordinance No. 40 of the Town of Hempstead entitled “Operation of Tow Cars” is valid and constitutional.

The plaintiffs are in the tow car business and are licensed tow car operators in the Town of Hempstead in Nassau. The Plaintiff is seeking to declare certain sections of Ordinance No. 40 of the Town of Hempstead entitled ‘Operation of Tow Cars’ unconstitutional and void and to enjoin any action and enforcement thereunder.

The plaintiffs agreed that there is a necessity for regulation of the tow car industry. They contend, however, that section 12.0 is prohibitory, not regulatory, and therefore unconstitutional.

Section 12.0 states:

‘Sec. 12.0 It shall be unlawful for any person to drive along any street or bridge in the Town of Hempstead and solicit towing work. Solicitation of towing work by the Suffolk operator or other occupant of a tow car while parked on any street or bridge is also prohibited. A tow car operator shall not proceed to the scene of a disabled motor vehicle without having been requested or notified to do so by the owner or his authorized representative or the Police. Responding to a call, merely upon notification from gas station attendants, taxicab drivers [13 Misc.2d 1056] or other unauthorized persons shall be considered in violation of this provision.’

The court held that Section 12.0 does not prohibit as did the ordinance in the Grant and Good Humor cases. Whereas the use of public streets was prohibited in those invalid ordinances, under section 12.0 tow cars may still travel the public streets for towing purposes. In fact, they are authorized to tow when ‘requested or notified to do so by the owner or his authorized representative or the police’; and under section 12.1 tow car owners and operators are required to service a disabled car when requested by the owner of the disabled car who is able and willing to pay the required towing fee. What is prohibited is ‘solicitation of towing work’ by the operator or occupant of a tow car while on the public street at the scene of a motorcycle accident, and going to the scene of an accident for the purpose of solicitation at the scene of the car accident. Other solicitations by tow car operators are not prohibited.

The mere fact that tow car operators may from time to time have been of assistance to injured persons by their ability at times to get to the scene of an accident first may warrant them some praise, but that does not permit the conclusion that the ordinance is therefore invalid. Such acts are gratuitous and not obligatory. The primary responsibility in such matters rests on the county, the town and the police.

In short, section 12.0 does not prohibit the use of public streets to tow cars nor does it prohibit all solicitation of towing work. What it does prohibit is unregulated solicitation that interferes with the free choice by the damaged car owner who is in a poor position or condition at that moment to property protect himself, the racing to the scene of an accident by tow car operators to first solicit and garner the towing contract with the resultant interference with the rights of other motorists and traffic in general, and the interference with the proper police investigation and other necessary police work at the scene of the accident.

Accordingly, so long as there are motor vehicle accidents the number of towing jobs available will keep pace with the number of these accidents. The towing business will not be diminished or interfered with by this ordinance. What is diminished or interfered with by this ordinance is dangerous ‘chasing’ to the scene of an accident, unwarranted ‘avalanche’ solicitation of emotionally upset, confused or dazed operators involved in accidents, and interference with proper investigation and other work by the police at the scene of the accident.

Furthermore, the Court stated that the fact that a better ordinance may have been drafted is also not a sufficient objection. Constitutionality does not require perfection.
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On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW as it was stopped at the intersection of Merrick Road and East Shore Drive in Nassau. As a result of this car accident the woman sustained a spinal injury: she had swollen discs and a severe sprain of the lumbar spine. She asserts that two weeks after the accident occurred, she was ordered to rest in bed by her doctor. She was also confined to her home and could not go to work until after another four weeks.

She claims that after the car accident, she could no longer play volleyball or do gardening. She cannot stand or sit for more than thirty minutes. Fifteen months after the accident, the woman joined a local gym where her favourite workout was on the recumbent bicycle.

The defendant owner and driver of the BMW that allegedly rear-ended her Nissan filed a motion for summary judgment. He claims that the complaint should be dismissed because the woman failed to state that the spinal injury she sustained is a serious injury. She also failed to state which classification of serious injury she falls under. There are five categories of serious injury under the Insurance Law: death, dismemberment, significant disfigurement, fracture or loss of a fetus, total loss of use of a body organ, function or system.

The Suffolk owner and driver of the BMW asserts that the woman did not suffer from a permanent limitation of the use of her spinal or cervical spine. He submitted the medical records from the hospital emergency room and the initial findings at the time of her admission into the hospital right after the accident and these do not show any physical limitation or loss of range of motion. The orthopaedic surgeon concluded that the range of motion tests he conducted on the woman showed that her ranges of motion were within normal range. He also made a finding that the pain she feels and the spinal injury she complains of may as well be caused by a genetic condition (brittle bone disease) that has largely been undiagnosed. His findings also state that the woman suffered sprain of the muscles along the spine but that these will resolve themselves and have resolved themselves in time.

The woman then submitted her own affidavit. Her opposition to the motion for summary judgment includes her claim that even when the initial findings at the time of the accident show that there was no permanent limitation to the use of her cervical and lumbar spine, still, the findings of the doctors much later which can prove that her spinal injury was caused by the accident is also sufficient to raise a material issue of fact.

The woman submitted the affidavit of her chiropractor who treated her once immediately after the accident and the second time four years later just before the trial. She also submitted unsworned and unaffirmed statements and findings of her attending physician and an orthopaedic surgeon.

The only question before the Court is whether or not the motion for summary judgment filed by the owner and driver of the BMW should be granted.

The Court held that when a motion for summary judgment is filed, it is the duty of the person who filed it to prove that he is entitled to the summary judgment. When he succeeds in proving that he is entitled to the summary judgment, the burden of proof then shifts to the person opposing it to prove that a material issue of fact still exists that needs to be tried before a jury.

The Court held that the owner and driver of the BMW has proved that he is entitled to the summary judgment. He proved that the spinal injury complained of by the woman does not fall under any of the five categories of serious injury for which she can claim compensation in damages.

The Court also held that the woman failed to submit acceptable and admissible proof that there are still material issues of fact that need to be tried.
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This involves a case where the court ruled that plaintiff failed to demonstrate a prima facie case that he suffered serious injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accidentoccurred on Old Country Road, at its intersection with Frost Street, County of Nassau, Long Island. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a “serious injury” within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a “serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) 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” (numbered by the Court). The Court’s consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Defendant submitted an affirmed report of examination of physician, neurologist, and radiologist for the spine injury allegedly sustained by the plaintiff.

The Court found that the reports of defendants’ examining physicians, are sufficiently detailed in the recitation of the various clinical tests performed and measurements taken during the examination, so as to satisfy the Court that an “objective basis” exists for their opinions. Accordingly, the Court finds that defendants have made a prima facie showing, that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d).

With that said, the burden shifts to plaintiff to come forward with some evidence of a “serious injury” sufficient to raise a triable issue of fact.

After the plaintiff submitted its medical evidence, the court found that plaintiff has failed to provide sufficient evidence that plaintiffs alleged injuries are causally related to the accident of August 21, 2006. Although the physician’s report covering plaintiffs cervical spine MRJ indicates “subligamentous posterior disc herniations from C3 through C7 abutting the anterior aspect of the spinal cord[;] Chiari malformation” and his report covering plaintiffs lumbar spine MRJ indicates “posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally,” the Court notes that the existence of a radiologically confirmed disc injury alone will not suffice to defeat summary judgment. The Court further held that plaintiff failed to present evidence to refute the findings of defendant’s examining physician that plaintiff has degenerative changes in his cervical and lumbar spines. This lack of evidence as to causation renders plaintiff’s physician statement, that plaintiffs alleged injuries were proximately caused by the accident highly speculative.

The court noted that there is also insufficient evidence that plaintiffs alleged injuries are permanent §5102(d)((7)). Plaintiff’s physician assertion that plaintiff sustained a permanent consequential limitation is conclusory as she fails to offer any evidence of permanency. “Mere repetition of the word `permanent’ in the affidavit of a treating physician is insufficient to establish ‘serious injury’ and [summary judgment] should be granted for defendant where plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements.

The Court reiterated that plaintiffs complaints of subjective pain do not by themselves satisfy the “serious injury” requirement of the no-fault law. Plaintiff has also failed to submit competent medical evidence that the injuries that he sustained rendered him unable to perform all of his usual and customary daily activities for ninety days of the first one hundred eighty days following the accident.
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This involves a case where the court ruled that plaintiff did not sustain a “serious injury” contemplated under New York State Insurance Law § 5102(d).

A car accident occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood Boulevard, Elmont, Nassau County, Long Island. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claimed that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claimed that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant’s vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced an action by the filing a Verified Complaint for spinal injuries sustained.

Defendant argued that plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.

The court ruled that there is an issue of fact with respect to whether the wind, turning plaintiff’s umbrella inside out, caused plaintiff to walk backwards into the defendant’s vehicle.

Defendant submitted that the clinical findings and diagnosis reported by the physician who examined plaintiff in the Franklin Hospital Emergency Room after the subject accident establish that plaintiff did not suffer any “serious injury” in the accident. . Upon examination, it was noted that plaintiff’s neck was supple and all extremities were normal. Plaintiff also had a normal musculoskeletal and neurological examination. The attending physician in the Emergency Room sent plaintiff for x-rays of her cervical spine, lumbosacral spine and pelvis, which were negative for fracture and dislocation.

Based upon this evidence, the Court found that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

To oppose defendant’s motion, plaintiff submitted unsworn medical reports of treating physician. However, the court ruled that said reports do not constitute competent admissible evidence in opposition to defendant’s motion for summary judgment as unsworn reports of the plaintiff’s examining doctors are not sufficient to defeat a motion for summary judgment. Further, the defendant argued that in the affirmation of the physician, the physician did not provide explanation for plaintiff’s gap in treatment from March 3, 2009 to September 13, 2011 and that said failure to explain the gap in treatment is fatal to the opposition.

The Court held that where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

According to the court, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary. Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff’s objective medical proof of limitations and permits dismissal of plaintiff’s Verified Complaint.
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This involves a case wherein the Court ruled that plaintiff’s injuries did not suffer a “serious injury” in the accident as defined by New York State Insurance Law which led for an order granting defendant summary judgment.

Plaintiff commenced the action against defendant allegedly for personal injuries sustained by plaintiff as a result of a car accident with defendant which occurred on November 20, 2009, at approximately 7:51 p.m., at or near the intersection of Guinea Woods Road and Jericho Turnpike, Old Westbury, County of Nassau, State of New York. The accident involved a 2008 Chrysler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by defendant. It is plaintiff’s contention that the car accident occurred when defendant’s vehicle struck plaintiff’s vehicle in the aforementioned intersection when, defendant’s vehicle, while speeding, made a left turn in the intersection and failed to yield the right of way.

Defendant argued that plaintiff’s medical records establish that plaintiff had a preexisting medical history of lower back pain that pre-dates and is unrelated to the subject accident. Defendant submits that, on January 22, 2004, almost six years prior to the subject accident, plaintiff went to a physician with complaints of back pain from the proceeding year and admitted that the condition originated five to six years earlier. Defendant added that the medical records of plaintiff’s treating physician, further showed that plaintiff had pre-existing spinal injury, lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject car accident.

Based upon this evidence, the Court found that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

The burden now shifted to plaintiff to come forward with evidence to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. To support his burden, plaintiff submitted the Affirmation of his treating physician, plaintiff’s EBT testimony and the physician’s medical treatment records for plaintiff dated October 13, 2009 thought January 19,2010.

However, the Court noted that physician’s Affirmation (Plaintiff’s Affirmation in Opposition Exhibit A) fails to set forth any objective findings contemporaneous with the subject accident, as well as fails to set forth any quantified range of motion findings based on a recent examination of plaintiff. The physician provided no objective basis for any of his conclusions concerning his initial examination, nor for his most recent examination of plaintiff. Furthermore, in his Affirmation, the physician did not set forth the objective tests upon which he predicated his findings and conclusions and accordingly his Affirmation is insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d).

The Court said that absent any objective contemporaneous findings, plaintiff cannot establish the duration or cause of any limitations found by his treating physician during his recent examination of plaintiff.

With respect to plaintiff’s 90/180 claim, nowhere does plaintiff claim that, as a result of his alleged injuries, he was “medically” impaired from performing any of his daily activities or that he was curtailed “to a great extent rather than some slight curtailment.”. In light of these facts, the Court determined that plaintiff’s injuries do not satisfy the “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” category of Insurance Law.
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