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This action arises from a motor vehicle accidentwhich occurred on September 19, 2008, at approximately 5:30 p.m., in the eastbound lanes of the Grand Central Parkway, Queens, New York, at or near its intersection with the Jewel Avenue Exit. The accident involved a 2005 Porche Boxster owned and operated by plaintiff and a 1986 Volvo Station Wagon owned by defendant and operated by defendant driver. Plaintiffs commenced this action by the filing and service of a Summons and Verified Complaint.

A source said that, it is plaintiff’s contention that the accident occurred when his vehicle, moving slowly in stop and go traffic on the Grand Central Parkway, was struck in the rear by defendants’ vehicle. Plaintiff claims that defendant driver admitted at his Examination Before Trial (“EBT”) that he did not see plaintiff’s vehicle until the moment of collision and offered no explanation for said collision other than his failure to pay attention to the road. Plaintiff claims that defendant driver was the negligent party in that he failed his duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that defendant driver cannot come up with a non-negligent explanation for striking plaintiff vehicle in the rear.

A Lawyer said that, in opposition to plaintiffs’ motion, defendants argue that, at his EBT, defendant driver testified that there were no brake lights illuminated on plaintiff’s vehicle just before the accident. Plaintiff submits that there is therefore an issue of fact as to the circumstances surrounding the accident and plaintiff’s motion should be denied. Defendants assert that a factual issue remains as to the extent that plaintiff’s comparative fault contributed to the happening of the subject accident by virtue of his failure to exercise ordinary prudence and to use such care to avoid the collision as an ordinarily prudent person would have under the circumstances.

A doctor said that, defendants move, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting them summary judgment on the ground that plaintiff did not sustain a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposed defendants’ motion. Plaintiff moved pursuant to CPLR § 3212, for an order granting partial summary judgment as to the liability against defendants. Defendants oppose the motion.

The issue in this case is whether defendants’ motion for summary judgment should be granted on the ground that plaintiff did not sustained serious injury in the subject accident as defined by New York State Insurance Law.

The Court said that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant’s favor. Such evidence may include deposition transcripts, as well as other proof annexed to an attorney’s affirmation. If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. It is the existence of an issue, not its relative strength that is the critical and controlling consideration. The evidence should be construed in a light most favorable to the party moved against.

When the driver of an automobile approaches another automobile from the rear, he or she is bound 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 pursuant to New York State Vehicle and Traffic Law (“VTL”) § 1129(a). A rear end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle. Such a collision imposes a duty of explanation on the operator. Of course, in a rear-end collision, the front most driver has the duty not to stop suddenly or slow down without proper signaling, pursuant to VTL § 1163, so as to avoid a collision.

As noted, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Drivers must maintain safe distances between their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.

Plaintiff, in his motion, has demonstrated prima facie entitlement to summary judgment on the issue of liability against defendants. Therefore, the burden shifts to defendants to demonstrate an issue of fact which precludes summary judgment. After applying the law to the facts in this case, the Court finds that defendants have failed to meet their burden to demonstrate an issue of fact which precludes summary judgment. Defendants failed to submit any evidence to establish a non-negligent explanation for striking plaintiff Deutsch’s vehicle in the rear.
Therefore, based upon the foregoing, plaintiffs’ motion, pursuant to CPLR § 3212, for an order granting partial summary judgment as to the liability against defendants is hereby granted.
The Court will now address defendants’ threshold motion. As a result of the subject accident described above, plaintiff claims that he sustained the following injuries: Cervical Disc Herniation and/or Displacement; C2-3 broad based central disc herniation tangent with the thecal sac; C3-4 disc bulging; C5-6 disc bulging;

C4-5 central disc herniation indenting the thecal sac narrowing both lateral recesses; C6-7 disc bulging indenting the thecal sac; C7-T1 central focal disc herniation indenting the thecal sac; Torticollis; Limitations to cervical range of motion; Muscle spasm & guarding – bilateral upper trapezius muscles; Muscle spasm & guarding – central paraspinal muscles; Cervicalgia.
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a “serious injury” as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a “serious injury.”
In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant’s examining physicians or the unsworn reports of the plaintiff’s examining physicians. However, unlike the movant’s proof, unsworn reports of the plaintiff’s examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff’s injury. The Court said that a plaintiff’s proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor’s observations during the physical examination of the plaintiff. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.

Conversely, even 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.

In the case at bar, laintiff claims that, as a consequence of the above described automobile accident, he has sustained serious injuries as defined in § 5102(d) of the New York State Insurance Law and which fall within the following statutory categories of injuries:
1) a permanent consequential limitation of use of a body organ or member; (Category 7)
2) a significant limitation of use of a body function or system; (Category 8)
3) 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. (Category 9).

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the “permanent consequential limitation of use of a body organ or member” or “significant limitation of use of a body function or system” categories can be made by an expert’s designation of a numeric percentage of a plaintiff’s loss of motion in order to prove the extent or degree of the physical limitation. In addition, an expert’s qualitative assessment of a plaintiff’s condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff’s limitation to the normal function, purpose and use of the affected body organ, member, function or system.
Finally, to prevail under 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, a plaintiff must demonstrate through competent, objective proof, a “medically determined injury or impairment of a non-permanent nature” “which would have caused the alleged limitations on the plaintiff’s daily activities.” A curtailment of the plaintiff’s usual activities must be “to a great extent rather than some slight curtailment.” Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

With these guidelines in mind, the Court will now turn to the merits of defendants’ motion. In support of their motion, defendants submit the pleadings, plaintiffs’ Verified Bill of Particulars, the transcript of plaintiff EBT testimony, the affirmed report of the doctor, who performed an independent orthopedic medical examination of plaintiff, the affirmed report of the doctor, who reviewed plaintiff’s cervical spine MRI and the Health Insurance Claim forms submitted by plaintiff’s treating providers.

Defendants first assert that plaintiff’s admissions in his EBT testimony regarding the minimal treatment he received after the subject accident is evidence that he failed to sustain a “serious injury” as a result of said accident. Defendants state that “plaintiff testified that he did not tell the police he was injured, request an ambulance or go to a hospital after the accident. The first time he sought medical treatment was three or four days after the accident. A board certified orthopedic surgeon, conducted an examination of plaintiff on July 8, 2011. Said examination included an evaluation of plaintiff’s cervical spine and upper extremities. Range of motion testing, conducted by way of a goniometer, revealed normal findings. Based upon his clinical findings and medical record reviews, orthopedic surgeon diagnosed plaintiff with “cervical strain – resolved with preexisting degenerative changes.” The doctor’s ultimate diagnosis of plaintiff was that “claimant is a 59-year-old male who alleges an injury of 09/18/08 as a seat belted driver. His prognosis is excellent. Currently, he shows no signs or symptoms of permanence relative to the musculoskeletal system and relative to the accident. He is currently not disabled. He is capable of his full time, full duty work as a real estate broker without restrictions. He is capable of his activities of daily living. He is capable of all pre-loss activities.”

With respect to plaintiffs’ 90/180 claim, defendants submit that plaintiff’s admissions at his EBT establish that he did not sustain an injury that prevented him from performing substantially all of the material acts that constituted his customary daily activities for at least 90 days of the 180 days immediately after the accident. Plaintiff testified that, at the time of the accident, he was employed as a real estate broker, that he was confined to his bed for two days and his home for a couple of weeks after the accident and the week after the accident he started doing work in his house. In addition, he quit that job to start his own business two years ago and worked 60-70 hours a week as he did before at Prudential. Furthermore, plaintiff is not claiming he was disabled for doing his normal activities for three months out of the first six months after the accident. Defendants also argue that the Health Insurance Claims forms submitted by plaintiff’s treating providers are further evidence that he did not sustain an injury which prevented him from working after the subject accident.

Based upon this evidence, the Court finds that defendants have 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 shifts to plaintiffs to come forward with evidence to overcome defendants’ submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. To support his burden, plaintiff submits his Affidavit and that of his doctors. Plaintiff argues that the Affidavits of his physicians raise issues of fact as would preclude summary judgment. Plaintiff also submitted the certified medical reports of his doctor in support of their opposition to defendants’ motion.

As previously stated, even where there is ample proof of a plaintiff’s spinal 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. The Court finds that neither plaintiff nor his doctors adequately explained the cessation of plaintiff’s treatment after the accident.

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.

Additionally, plaintiff’s treating chiropractor failed to address the findings of defendants’ radiologist, with respect to degeneration, and thus failed to raise a triable issue of fact. Furthermore, plaintiff’s subjective complaints of pain, without more, are insufficient to satisfy the burden of establishing a serious injury. Finally, plaintiff’s deposition testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Further, no where do plaintiffs claim that, as a result of plaintiff Deutsch’s 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.”.

Based on the above, the Court finds that plaintiff have failed to establish by competent medical proof that he sustained a “permanent consequential limitation of use of a body organ or member,” a “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.”

Accordingly, the Court held that defendants’ motion, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting them summary judgment on the ground that plaintiff Deutsch did not sustain a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d) is hereby granted and plaintiffs’ Verified Complaint is dismissed in its entirety.
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A woman was driving her car sometime on June 10, 2005. She was involved in a vehicular accident. The impact caused her neck to snap back and her entire body was shaken violently. She lost consciousness and she was taken to the hospital by the emergency services. She experienced excruciating pain in her neck and left shoulder. An x-ray was taken of her and she was observed overnight in the hospital. The next day she was discharged but was advised to go for follow-up a neurologist. The woman experienced tingling and numbness from her back to her hips and from her shoulders to her fingers. Her neurologist advised her to undergo physical therapy.

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

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

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

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

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

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

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

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

The Court held that the conflicting medical reports of the doctors who examined and treated the woman’s spine give rise to an issue of material fact that must be tried by a jury. The Court denied the motion for summary judgment and remanded the case for trial.
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This action stems from personal injuries allegedly sustained by plaintiff as a result of a car accident with defendant which occurred on May 30, 2008, at approximately 7:35 a.m., at or near the intersection of Old Country Road and Sweet Hollow Road, Huntington, County of Suffolk, State of New York. The accident involved two vehicles, a 2005 Mitsubishi truck operated by plaintiff and owned by his employer,and a 2006 Chevrolet owned and operated by defendant.

Plaintiff contends that his vehicle was stopped for a red traffic signal at the aforementioned intersection and, when said traffic signal turned green for vehicles traveling eastbound through the intersection, plaintiff proceeded through said intersection. As plaintiff was driving through the intersection, defendant went through a red traffic light at the intersection and his vehicle collided with plaintiffs vehicle. As a result of the collision, plaintiff claims that he sustained serious injury.

Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting him summary judgment on the ground that plaintiff did not suffer a “serious injury” in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes the motion.

The Court finds 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).

Plaintiff’s reports are 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). Failure to indicate which objective test was performed to measure the loss of range of motion is contrary to the requirements of Toure v. Avis Rent-a-Car Systems, supra. It renders the expert’s opinion as to any purported loss worthless and the Court can not consider such. See Toure v. Avis Rent-a-Car Systems, supra; Powell v. Alade, 31 A.D.3d 523, 818 N.Y.S.2d 600 (2d Dept. 2006). In Goluld v. Ombrellino, 57 A.D.3d 608, 869 N.Y.S.2d 567 (2d Dept. 2008), the Court held that a doctor’s affirmation, in a motion for summary judgment, was insufficient to show whether plaintiff sustained serious injury under permanent consequential limitation of use or significant limitation of use categories of no-fault automobile insurance provision, when, although the doctor set forth range of motion tests results based on a recent examination that revealed limitations in plaintiffs lumbar spine, plaintiff did not proffer competent medical evidence that showed similar range of motion limitations in the lumbar spine that were contemporaneous with the subject accident.

Furthermore, the physician’s conclusions that, “based upon the foregoing examinations, testing and treatment my diagnosis is that plaintiff suffers from: bulging discs at L2 through SI with thecal sac effacement and encroachment upon the neuroforamina; Traumatic left C5-6 cervical radiculopathy; Traumatic left L5-S1 radiculopathy and Traumatic myofascial pain syndrome as a result of the motor vehicle accident on May 30, 2008” are speculative in light of the fact that he failed to address or even acknowledge the fact that plaintiff had previously injured his lumbar spine in a prior car accident.

It is also noted that the unsworn report of another Queens physician presented by plaintiff does not constitute competent admissible evidence in opposition to this motion for summary judgment. In the absence of any opinion as to the causality of her findings, her report is not competent medical evidence sufficient to present an issue of fact. See Garcia v. Lopez, 59 A.D.3d 593, 872 N.Y.S.2d The reports of plaintiffs treating and examining physicians also failed to address the findings of defendant’s radiologist with respect to degeneration, and thus, failed to raise a triable issue of fact.

Additionally, plaintiffs subjective complaints of pain, without more, are insufficient to satisfy the burden of establishing a serious injury. See Marshall v. Albano, 182 A.D.2d 614, 582 N. Y.S.2d 220 (2d Dept. 1992). Plaintiff has therefore failed to establish by competent medical proof that he sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.” See Insurance Law § 5102(d).

Finally, plaintiffs deposition testimony does not establish that he was unable to perform substantially all of the material acts which constitute his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury. Plaintiff went back to work shortly after the accident.
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A man suffered serious personal injury as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury. As a result, the attending surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

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

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

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

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

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

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

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

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

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

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

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

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit “per claim” and not the aggregate limit applies in this case.
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A Westchester taxi company filed a request to grant them a decision without trial in dismissing the complaint against them on the ground that the complainant man failed to support a serious injury allegation. However, the complainant man filed a cross motion and for sanctions based upon the court’s prior ruling awarding him a decision without trial regarding the liability.

The action stemmed from the complaint of personal injury action filed by the man against the driver of the taxi, the taxi company and the owner of the taxi. The man alleged that he was stopped at the traffic light when the taxi hit into his vehicle. The driver of the taxi escaped and throughout the proceeding the driver’s location cannot be identified that’s why the taxi company was held vicariously liable for the driver’s negligence.

The taxi company argues that the man has failed to meet the legal requirements of a serious injury under the insurance law. Based on records, serious injury is defined 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, significant limitation of use of a body function or system, a medically determined 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 impairment.

The taxi company presents affirmed medical reports from two Queens physicians in support of their argument. First, they submitted the affirmed report of an orthopedic surgeon regarding the man’s assessment. That report references the man’s repeated complaints of lumbar pain resulting in his inability to sleep through the night or remain standing pain free. It is noted that the man specifically stated that he experiences permanent pain on his back and can’t stand for about 15 minutes. The man also states that he can’t sleep for more than 3 or 4 hours because he needs to wake up due to the pain in his lumbar. However, the orthopedic surgeon’s physical exam found that the man exhibited a normal range of motion and moved pain free within the normal range. The surgeon also found that the man can walk normally, rapidly and without limping. The surgeon measured both of the man’s arms, conducted manual muscle testing and again found each arm normal. Likewise, the surgeon also measured the circumference of the man’s legs conducted manual muscle testing and pin prick simulation and found normal, symmetrical measurements, movements, and response.

The second affirmed medical report was a radiology study completed by another physician. The CAT scans have been provided on a CD-ROM and are unauthenticated. According to the physician, the man’s scans taken 25 days after the accident showed spinal degeneration. However, the physician found no evidence of acute or recent damage, considerably a representation of age-related chronic degeneration of the spine.

The man’s first argument is about the taxi company’s improper filling of the cross motion. The man claims that the prior determination granting him decision without trial resolved both the liability and serious injury issues presented therein and contends that the taxi company needed to pursue any remedy through appeal. The man then requests denial of the cross motion and seeks sanctions against his counsel.

The man also provides only one medical affirmation about the accident. A licensed neurologist refer on the unauthenticated images studied by the taxi company’s radiologist and affirms that the man has developed tingling and numbness in his right and left arms radiating into his right and left leg as a result of the accident. The neurologist also found that the man’s sensory thresholds are all within normal limits, except for a decreased sensation on the outer aspects of the bilateral leg and decreased sensation on the outer aspect of the bilateral arm. The neurologist also found that the man suffered a decreased spinal range of motion. She maintains that the man had weakness in the arm and leg muscles. The neurologist therefore reports permanent restrictions in range of motion of the cervical and lumbar spine region and neurological disability that would require a series of three epidural injections to the neck, systematic physical therapy and pharmacological pain management.

Despite of the man’s several requests, he failed to provide the court with affirmations from his treating physician at the time of the accident or with affirmations from those doctors treating him after the accident. Moreover, few of the documents provided in response to the subpoena are from the relevant time period. The only documents referencing the man’s medical treatment are an unaffirmed patient narrative by another physician, the CD-ROM of the man’s scans and an unaffirmed letter from the radiologist who performed the scans.
The unaffirmed narrative mentioned above outlines the treatment received by the man from three physicians who performed his CT scans and psychological examination thirty day after the accident. One of the said physician conducted a physical examination of the man’s lumbar and muscles finding a decrease in movement and motor strength. Specifically, he states in an unsworn letter that he found a 90 percent decrease from normal in right and left lateral flexion, extension, and rotation. Further, the physician found decreased muscle strength of the right deltoid, right wrist flexors and right wrist extensors diagnosing a 2/5 motor strength on the right with marked pain upon both active and passive range of motion. The physician neither noted the man’s specific measurements nor the normal comparative measurements. In addition, the man notes that he was treated by the physician several times and he argues that the facts demonstrate that he has suffered a serious injury under the insurance law.

The man also cites the unaffirmed report of his psychologist. He asserts that the report demonstrates that he is suffering both emotionally and cognitively and that the negligence of the taxi driver is the proximate cause of his psychological injury. In addition, the man refers to an unsworn MRI scan report of his lumbosacral spine performed by a radiologist. The radiologist explained in an unsworn report that the man is suffering from various spine injuries including anterolisthesis, disc space narrowing, dessication and a herniated disc. Additionally, the documents provided in response to the man’s subpoenas also include a small number of other unaffirmed documents referencing the accident. The documents are unaffirmed medical records from emergency rooms visits by the man apparently for treatment he received as a result of his complaints of lower back pain.

The man argues that the unsworn and sworn medical reports he has submitted in opposition to the taxi company’s cross motion demonstrate that he has suffered permanent and significant limitations of use in his neck and back. Using copies of the excerpts of correspondence from the social security administration, the man further notes that the SSA has determined that he is disabled.

Consequently, the Supreme Court granted the taxi company’s cross motion and the complaint is dismissed. It is further ordered that the man’s request to dismiss the taxi company’s cross motion and for sanctions is denied.
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This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.

Plaintiff Bianca Watler and her mother commenced an action to recover damages for personal injuries allegedly sustained in a car accidentthat occurred on Prospect Street in Kings County on October 25, 1996. The accident allegedly happened when a vehicle driven by defendant struck the rear of a vehicle operated by plaintiff, which was stopped due to traffic conditions on Prospect Street. The bill of particulars alleges that plaintiff sustained various injuries as a result of the collision, including a bulging disc at level L5-S1 of the lumbosacral spine; lumbar radiculopathy; right knee sprain/strain; cervical and lumbosacral sprains/strains; and “cervical paraspinal myofascitis with discogenic radiculopathy.” It further alleges that plaintiff, who sought treatment at the emergency department of Brooklyn Hospital Center immediately after the accident, was confined to home for approximately six months due to her injuries.

Defendant moves for summary judgment dismissing the claim of plaintiff on the ground that she is precluded by Insurance Law §5104 from recovering for non-economic loss, as she did not sustained a “serious injury” within the meaning of Insurance Law §5102 (d).

Insurance Law § 5102 (d) defines “serious injury” as “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”

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

Contrary to the assertions by defense counsel in Queens and Westchester, the sworn medical report by the physician is insufficient to demonstrate prima facie that plaintiff did not suffer a serious injury in the subject accident. Although the physician concludes in his report that his examination revealed that plaintiff only has “minimal residual cervical sprain without functional deficit” and no evidence of residual lumbosacral sprain or other orthopedic disability, his report fails to indicate the objective tests performed to support these finding. Further, while the report states that plaintiff exhibited “good” cervical movement and “no loss” in rotation, lateral bending and extension in the lumbar region, it does not indicate the range of motion measurements taken during the examination. Moreover, the physician indicates in his report that plaintiff exhibited “20 degrees decreased flexion” in her cervical spine and did not offer any cause for such limitation other than the accident or show that such a limitation is insignificant.

The motion for summary judgment, therefore, is denied, as defendant failed to establish prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
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A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.

On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.

The core of the Queens woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.

In an attempt to reverse the Court’s determination, the accused men both separately move for leave to renew the Court’s Decision and Order. Both accused state that their respective motions are made pursuant to the Civil Practice Law and Rules, which provides for a combined motion for leave to reargue and leave to renew.

The Civil Practice Law provides that a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.

In considering such a motion made pursuant to the Civil Practice Law and Rules, a Court must measure each branch of the motion according to the requirements which govern motions for re-argument and renewal, respectively.

In the instant case, one of the accused make it plain in his motion and reply papers that his motion is one for renewal, not re-argument. Specifically, in the reply it is stated that, despite the woman’s assertion that the accused men’s motion is a combined motion to renew and reargue, the accused men’s motion was in fact made as motion to renew. Yet, the accused men include in his motion and reply papers various arguments previously submitted to the Court, without identifying which matters of fact or law the NYC Court allegedly overlooked or misapprehended.

The other man is intimate that his motion is both a renewal and a re-argument motion, although the labeling of his own motion is inconsistent within the affirmation of counsel. Finally, in his reply, the accused claim that the motion is a combined one for renewal and re-argument.

In any event, the Court will consider each such motion separately, as required by statute. Firstly, with respect to the first man’s renewal motion, the Court notes that the accused have not presented any new facts for the Court’s consideration, nor have they demonstrated that there has been a change in the law that would change the Court’s prior determination. Thus, the accused man’s motion to renew is denied, but the Court will consider his motion as one seeking leave to reargue.

The other accused man’s renewal motion is likewise denied. Although the accused have submitted the woman’s deposition testimony, which he did not possess when he filed the original summary judgment motion, the woman’s testimony does not change the prior determination of the Court. The woman’s testimony consists of a total of six (6) pages wherein she testified that she remembers nothing about the accident. She did not testify about the general appearance of the roadways involved, nor did she offer testimony about the bushes in question. Despite the fact that her testimony is wholly and plainly of no moment regarding the men’s liability related to the bushes, the accused men both submitted such testimony in support of their motion.

Although both men’s motions are not specifically and properly identified, the Court will afford a broader view of their respective motions and treat those motions as motions for re-argument as well.

At his oral examination before trial, one of the men testified that he had consumed alcohol on the day of the accident. He testified that ultimately he pled guilty to driving while under the influence of alcohol and that he was sentenced upon that conviction. He stated at his deposition that he was also prosecuted and pled guilty to vehicular assault in the 2nd degree, a class E felony. He admitted that he was operating a motor vehicle while having 0.09 of 1% per centum or more of alcohol in his blood. His license was subsequently revoked.
The man also testified that at the time of the accident which resulted to the woman’s injury, he was operating his motor vehicle heading northbound on Oceanside Road. The complainant woman was operating her vehicle westbound and was attempting to make a left hand turn onto Oceanside Road when the impact occurred. The woman’s travel was governed by a stop sign on Erwin Place. The facts established that, at the intersection, Oceanside Road is slightly curved so that a vehicle traveling north on Oceanside Road, such as the accused man’s vehicle, would be driving on a bend as he approached the subject T-intersection. In fact, the man testified at his deposition that a person traveling on Oceanside Road did not have clear view of the intersection as a result of the curvature of the road, the telephone pole, the speed limit sign and also the hedgerow on the accused man’s properties.

It was also established on the underlying motions that the other man is the owner of the premises, which sits on the south-east corner of said T-intersection, and the front of which faces Erwin Place. The accused is the owner as tenants in common of the premises, which home is adjacent to the other accused man’s home, and the front of which faces Oceanside Road. It was legitimate entitlement to summary judgment as a matter of law.

The testimony of the non-party witnesses establishes that the bushes in question may have contributed to the occurrence of the accident underlying the action, thus raising triable issues of fact with respect to the personal injury liability of both the accused. Neither of the accused men submitted the non-party witness deposition testimony to the Court. The woman submitted that deposition testimony in her opposition to the instant motions made by the accused.

The woman’s former boyfriend testified that the bushes that are blocking the view of the vehicles located on Erwin Place, thus interfering with a driver’s ability to see cars traveling northbound on Oceanside Road.

A passenger in the car traveling behind the woman described that same intersection as being obstructed by bushes that were about six feet high.

A man driving the car traveling behind the woman at the time of the accident testified that the bushes in question block the view of the oncoming traffic on Oceanside Road. He saw the truck only after it had passed the bushes. According to him, the bushes started relatively close to the intersection and ran all the way down and he couldn’t really see the street at all.
The Court turns to the accused men’s claims that the town ordinances do not apply to them, and do not place any duty on them with regard to motorists.

Specifically, the ordinances alleged by the woman to have been breached by the moving accused men relate to Fences and Fences and Planting screens. Upon their instant motions to renew, the accused have failed to proffer any new or additional facts surrounding the alleged statutory breaches. Nevertheless, even overlooking the otherwise fatal procedural infirmity, the accused have failed to demonstrate, yet again on the renewed motion, that the ordinances do not apply to them.

As the Court detailed in its prior Decision and Order, the woman’s personal injury claims against the accused relate to their alleged failure to keep the hedges on their property properly trimmed so as to permit maximum view of the T-intersection. In that regard, while it is true that generally property owners have no common-law duty to control the vegetation on their property for the benefit of public highway users, the accused have failed to show that the shrubbery at issue does not apply to them. Upon their instant motions, the accused maintain that even if the shrubbery at issue is deemed to be a planting screen within the meaning of the ordinances, the language of the ordinances to not specifically outline or intimate that the ordinance is in place to protect drivers on a highway. Relying principally upon the Second Departments’ rulings as well as the Court of Appeals’ ruling, the accused argue that in addition to the fact that there is no common law duty owed to the woman by the landowners, the public policy also supports the finding that they as private landowners cannot be held liable to the accused. The arguments are unavailing.

It is true that there is no common law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway. The absence of a common law duty on the abutting owner, however, does not end the inquiry into the abutting owner’s potential liability. There exists an exception to the common law rule when, as in this case, an ordinance or a specific regulatory provision places an affirmative duty on the abutting owner to maintain and keep the area free of obstructions. It is undisputed that the Town of Hempstead Building Zone Ordinance, impose upon the property owners a duty to prevent vegetation from visually obstructing the roadway. Thus, in the absence of any demonstration by the accused that they complied with said ordinances, proof of noncompliance with the regulatory provisions may give rise to tort liability for any damages proximately caused thereby.

Accordingly, the accused men’s motion for summary judgment to dismiss the woman’s complaint is again denied, even upon renewal/re-argument. Ultimately, whether the hedge grow was the proximate cause of the accident, is among the many issues that warrant a trial.
Finally, inasmuch as the accused do not address the Court’s basis for the denial of their underlying motions, to wit, that the operation of the motor vehicle while under the influence of alcohol may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the application to reverse the Court’s prior determination and order must clearly be denied.
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This case is about a car accident involving three vehicles that happened at the intersection of Hempstead Turnpike and Silver Lane in Levittown. The defendants were indicted and charged with manslaughter in the second degree and criminally negligent homicide on alternative theories of individual and accomplice liability.

The accident happened on January 31, 1983, around 11:00 P.M. wherein the Chevrolet Nova of the victim, which was turning left from the westbound turning lane of Hempstead Turnpike across the eastbound lanes thereof into Silver Lane, was struck by two cars rapidly approaching in the eastbound lanes of the Hempstead Turnpike. The Staten island car in the eastbound center lane, a blue Pontiac Trans Am, separated from the collision, skidded to the south curb and flipped over. The car in the eastbound left lane, a red Camaro, dragged the Nova further east down Hempstead Turnpike until they both came to a stop near the south curb. The Queens driver of the Chevrolet Nova died instantly from skull fractures and intracranial hemorrhage. The defendant-driver of the blue Trans Am was removed unconscious from his car with trauma injuries. The defendant-driver of the Camaro and his passenger sustained only minor cuts.

The prosecution introduced at trial the defendant-driver of the Camaro and moved that the case be tried before two juries, one for each defendant. The trial court granted the said motion and impaneled two juries. The members of each jury were given labels to wear designating which defendant’s fate they were considering. They were instructed by the trial court not to communicate with the members of the other defendant’s jury, and not to speculate about the reason for the presence in the courtroom at times of only one of the two juries. Opening statements were made to each jury separately and then both juries were brought into the courtroom to hear the testimony. During the introduction of the inculpatory statements of the defendant-diver Camaro, only his jury remained in the courtroom while the other defendant’s jury was excluded. Separate summations were delivered to each jury and, without objection, the court gave one charge to both juries, omitting any mention of the inculpatory statements.

Both defendant-drivers denied that they knew one another prior to the car accident. Each, however, admitted that he had noticed the other car and driver as they were stopped side by side at a stoplight .4 of a mile west of the accident site. Each denied exchanging any words or signals with the other. Defendant-driver of the Camaro testified that he proceeded first when the light changed and accelerated to “a little over 40, tops” when suddenly a car turned directly in front of him. He stated that he braked and turned his wheel to the left but that it was too late to avoid the collision and his Camaro hit the right rear of the Nova, rotating the Nova in a clockwise direction into the path of the Trans Am.”

On the other hand, the prosecution presented an eyewitness, which testified inter alia that the two vehicles were drag racing on the said street before the impact. Three accident reconstruction experts and their testimonies were also presented. These experts estimate the pre-impact speed of the Trans Am and Camaro ranged from 70 to 90 miles per hour, while the Nova’s speed was estimated at 15 to 20 miles per hour as it made its turn. Based on their calculations and observations, it was the opinion of these experts that if the eastbound cars had been travelling at 40 or 50 miles per hour, they would have passed behind the Nova and the collision would not have occurred.

The court held that the evidence was legally sufficient to support the verdicts of both juries finding both defendants guilty beyond a reasonable doubt and that the verdicts are not against the weight of the evidence. The evidence in this case of excessive speed coupled with the circumstances under which the incident occurred, at night on a well-travelled highway where traffic is restricted to a moderate speed, the two cars speeding side by side and hitting a turning vehicle without any braking or evasive action, sufficed to sustain the prosecution’s burden of proof.

The court also held that the dual jury procedure was carefully planned and fully explained to the juries, the defendants and their counsel. The plan was strictly adhered to, and no problems arose during the trial. Despite the assertion on appeal that the simultaneous charge to both juries here was prejudicial and confusing, there was no objection from either defendant on that basis prior to deliberations and any error in that respect is therefore unpreserved for review. In any event, the court found neither error nor prejudice in the simultaneous charge.
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A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.

According to the woman’s statement, after the car accident the police responded to the scene but an ambulance did not arrive. The Queens woman then exited her vehicle unassisted, without any pain in any part of her body and was capable of driving her vehicle from the scene to her workplace. The woman testified that she first sought medical attention when she felt some pain in her lower back and headaches. X-ray examinations were taken and chiropractic treatment was rendered by a physician. She further testified that she was treated by the same physician regularly until the winter and eventually discontinued the treatment. Thereafter, she received physical therapy two or three times per week for a few months. She also testified that she visited an orthopedist on three or four occasions.

The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that the testimony contradicts the woman’s bill of particulars.
The woman also claims that as a result of the accident she sustained several spinal injuries. She contends that the injuries was due to the motor vehicle accident and qualify as serious injuries in insurance law. Based on records, serious injury under the insurance law is defined as death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of body organ, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined damage of a non-permanent nature that prevents the injured person from performing substantially all of the material acts which constitute his usual and customary daily activity for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the incident.

Based upon the plain reading of the papers submitted, the woman is not claiming that her injuries fall within the first five categories of the serious injury definition which includes death, dismemberment, significant disfigurement, a fracture or loss of a fetus. Therefore, the Staten Island court restrict its analysis to the remaining four categories of insurance law that includes 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 damage 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 incident.

Consequently, the opponent of the woman move to dismiss the action against her on the ground that the complainant’s injuries do not meet any definition of serious injury as defined in insurance law.

Based on records, in moving to dismiss the case, the opponent must make sufficient evidence that the complainant woman did not sustain serious damages within the meaning of the law. Once it is established, the burden then shifts to the complainant to come forward with evidence to overcome the opponent’s submissions by demonstrating a triable issue of fact that a serious harm was obtained.

The opponent submits a physician’s affirmation from an orthopedist. In his affirmation, the orthopedist indicated that his physical examination to the woman was essentially unremarkable with completely normal functional capacity of the cervical and lumbosacral spine areas, as well as the upper and lower extremities. Based upon his review of the provided medical records and his examination, there was no evidence of radiculopathy. He dismisses the possibility of a compression deformity of L3 as indicated on the MRI findings as it is related to a schmorl’s deformity as documented in the official MRI report and is not related to a posttraumatic event or to the accident.

The orthopedist further states that as a result of the accident, the woman sustained mild strains of the cervical and lumbosacral spine areas. The condition resolved uneventfully with the passage of time. There is no evidence of disability, sequelae or permanency. The woman has a completely normal functional capacity of the musculoskeletal system and no further treatment is needed.

In opposition to the opponent’s instant applications, the woman submitted records from three doctors. She also submits her own affidavit.

The MRI report of the cervical spine prepared by one of the doctor indicates the there was a posterior disc herniations at cervical spinal nerve 5-6 and at cervical spinal nerve 6-7 which is both eccentric toward the left impinging on the anterior aspect of the spinal canal and on the left intervertebral foramina. With the MRI report of the lumbar spine prepared by the orthopedist, it indicates a posterior disc herniation at lumbar spinal nerve 5 to sacral spinal nerve 1 impinging on the left nerve root. In addition, there is also a mild central compression deformity in the lumbar spinal nerve 3 vertebral body superiorly with an associated schmorl’s node and probably had no acute significance. It is an osteoarthritic changes’ at lumbar spinal nerve 4-5.

The orthopedist also affirmed that the woman is partially disabled and that her injuries are causally related to the car accident. He indicates that the woman suffered a decreased range of motion in her cervical and lumbar spine. He recommended chiropractic care, physical therapy, and epidural injections.

A neurologist also affirmed that upon range of motion testing with inclinometer there is a limitation of the cervical spine and lumbar spine. The neurologist moreover conducted a nerve conduction studies, wave studies, reflex studies and EMG studies. The electrodiagnostic study revealed evidence of right L5-S1 radiculopathy. He also performed additional range of motion testing with inclinometer which revealed decreased range of motion of the lumbar spine. Based on record, inclinometer usually used to measure and evaluate ranges of motion of the human joint. In his letter, the neurologist states that the woman’s lapse of treatment was due to the fact that the patient was recommended to continue physical therapy.

The woman additionally submitted her own affidavit which states that as a result of the accident, she was unable to attend her employment for several days. She was confined to her home after work and on weekends for approximately four (4) months following the accident. She indicates that she stopped seeing her orthopedist and his neurologist because she didn’t believe that the treatment would improve her condition and her insurance had stopped paying for treatment which she could not afford to pay herself.

When the court examined the medical evidence offered by the woman on a threshold motion, the court ensure that the evidence is objective in nature and that the woman’s subjective claims as to pain or limitations of motion are sustained by verified objective medical findings. Consequently, the court denied the motion of the opponent to dismiss the claims against her.
There are times that when emergency occurs, instant reaction from our body comes out and gives as extraordinary strength, swift movement and even unusual tolerance to pain.
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On November 6, 2009, at around 11:30am, a car had stopped at a red light at the corner of 86th Street and 7th Avenue in Brooklyn. The car had stopped for around ten seconds when it was hit from the rear end by a van owned by a private company and driven by one of its employees. As a result of the rear-end collision, the driver of the car sustained a shoulder injury which had to be surgically repaired twice.

The defendant in his deposition claimed that it was raining on that day and hour when the car accident occurred. He also claims that the car accident was not really a rear-end collision but that the van tried to swerve to avoid hitting the car in front of him. He claims to have succeeded in that only the end of the van’s bumper hit the end of the car’s bumper. The defendant also claims that the car stopped abruptly in front of him which made it impossible for him to stop in time and avoid hitting the car in front of him.

These allegations of the defendant in his examination before trial were never made part of the police report accomplished by the police officers who responded at the car accident scene. These allegations were also never contained in the report filed by the employee when he explained the accident to his employer. The car owner points out that the police report clearly showed that the van hit the car squarely in the rear.

For these reasons, the car owner filed a motion for summary judgment. He asserts that there are no material issues of fact that still need to be tried before a jury. He also asserts that his claims for damages arising from the injury sustained in the car accident be granted.

The defendant van owner opposed the summary judgment prayed for by the car owner. He claims that the van stopped behind the car when the light turned red. But then when the light turned green the car started to move but abruptly stopped. This was when the collision took place.

The only question before the Court in Queens is whether or not the car owner’s motion for summary judgment should be granted.

The Court held that there are no issues of material fact that must still be tried before a jury. The Court pointed out that a vehicle in the rear is duty bound to keep a safe distance from the car in front of it. The car in the rear must maintain a rate of speed and control over his vehicle so as not to hit the vehicle in front.

The Court appreciated the fact that the car was already stopped at the red light when the van hit it from behind. When a car accident involves a vehicle hitting a parked or stopped vehicle from behind, an inference arises that the vehicle in the rear which bumped the stopped car is the vehicle at fault.

The law presumes that the bumping vehicle was negligent. A mere allegation that the parked car “suddenly” or “abruptly” stopped cannot defeat the presumption of negligence. This is because the law impose a duty on every car and car driver to maintain sufficient distance between his car and the car in front of him to give allowances for such sudden stops.

For the failure of the van owner to prove that there are still issues of material fact that need to be tried before a jury, the Court granted the motion for summary judgment filed by the car owner.
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