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

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

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

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

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

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

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

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

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

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

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

In sum, plaintiff has not sustained a serious injury within the meaning of the Insurance Law. Thus, the defendant’s motion for summary was granted in its entirety and the plaintiff’s complaint was dismissed as to all categories.
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As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Manhattan Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Staten Island employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

But the order under review also made the Paint Company responsible for half of the expense of treating the woman’s lower back or lumbar spine injury. While competent, substantial evidence supports the finding that she did not sustain a lumbar spinal injury in the first car accident the record lacks competent, substantial evidence supporting the decision to allocate responsibility for treatment of that injury is fifty-fifty. Such an allocation is not justified simply because the need for treatment was causally related both to the second and to the third accidents. None of the doctors whose opinions the judge of compensation claims cites in support of a fifty-fifty split stated that the second and third accidents were equally responsible for the condition of the woman’s lumbar spine.

The woman also contends that the judge of compensation claims erred in denying her claims for treatment with a neuropsychologist and with a separate, pain management specialist. The order provides that the authorization of a pain management physician is deferred until the claimant resumes treatment with authorized neurosurgeon, and the suggested treatment is deemed to be reasonable and medically necessary. It further provides that the authorization for care and treatment of the claimant’s neuropsychological condition is deferred until the claimant resumes treatment with the authorized psychiatrist and suggested neuropsychological treatment, is deemed to be reasonable and medically necessary.
A judge of compensation claims has no authority to delegate the decision of claims pending before him to medical providers, to delay decision indefinitely, or, in a final order, to defer to opinions not yet offered.

The judge of compensation claims found that the woman was entitled to temporary partial disability benefits from the April 30, 1996 accident until she reached statutory maximum medical improvement on May 1, 1998, and to permanent total disability benefits thereafter. He then ruled that she was entitled to only two-thirds of the normal indemnity benefits, holding that entitlement to a third of the benefits otherwise due was carved out by the non-compensable accident. This analysis was erroneous.

If a subsequent non-compensable accident superimposes an injury on a compensable condition, the disability resulting solely from the subsequent accident is not compensable. As to temporary indemnity benefits, the question that should have been addressed on remand-and must now be addressed on a second remand-is whether the woman’s disability attributable to the industrial accidents would have rendered her (partially or totally) unemployable, without regard to the effects of the third accident.

An employer is not entitled to receive a windfall when some misfortune unrelated to work befalls an industrially injured employee and prevents his working, if a prior industrial accident would otherwise have entitled the employee to workers’ compensation benefits.
Similarly, as to permanent indemnity benefits, the judge of compensation claims must decide on remand whether the woman’s disability attributable to the industrial accidents would have rendered her totally and permanently disabled even if the third accident had never occurred. An evidentiary issue is presented as to what portion of the disability is caused by the compensable accident, even where the non-compensable condition is independently a sufficient producing cause of claimant’s total disability. The question is whether she was or would have become totally disabled in the absence of the non-work-related accident.

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.
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This action is for personal injuries alleged to have occurred as a result of a motor vehicle accidentinvolving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Suffolk reporter said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the car accident.

A doctor said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A Lawyer said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a source said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

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

The Court held that, New York’s No-Fault Insurance Law precludes recovery for any “noneconomic loss, except in the case of serious injury, or for basic economic loss” arising out of the negligent use or operation of a motor vehicle. As recognized by the Court of Appeals, the “legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”. The Legislature also intended that the issue of whether a plaintiff sustained a “serious injury” could be determined by the courts as a matter of law on a motion for summary judgment.

The Court cited the provisions of the 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”.

To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must include objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment, based on objective findings, comparing the plaintiff’s present limitations to the normal function, purpose and use of the affected body, organ, member or function. “Whether a limitation of use or function is ‘significant’ or ‘consequential’ relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of the body part”. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute. Further, subjective claims of pain and limitation of movement must be verified by objective medical findings that are based on a recent examination of the plaintiff.

The Court said that, a movant 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”. Once a movant meets this burden, the plaintiff must present proof in admissible form showing that a serious injury exists or demonstrate an acceptable excuse for failing to meet the requirement of tender in admissible form.

In the case at bar, the Court finds that defendant’s submissions were sufficient to establish that plaintiff did not sustain serious injury to her back, left hip or left wrist as a result of the accident. The burden, therefore, shifted to plaintiff to raise a triable issue of fact, and she failed to present competent medical evidence substantiating her claim that her spinal injuries caused a permanent consequential limitation of use of a body organ or member, or a significant limitation of use of a body function or system. While under certain circumstances a herniated disc may constitute a serious injury within the meaning of Insurance Law § 5102(d), plaintiff failed to provide any objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration. Furthermore, plaintiff did not provide any recent medical evidence in opposition to the instant application; instead, plaintiff merely provided unsworn reports and records from the physicians who examined and treated plaintiff in the months following the accident in February of 2002. Such submissions were insufficient to rebut defendant’s prima facie showing of no serious injury.

Accordingly, the Court held that the motion by defendant for summary judgment dismissing plaintiff’s complaint on the grounds that plaintiff has failed to sustain a “serious injury” as that term is defined by Insurance Law § 5102(d), is granted.
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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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Two construction and repair crewmen from the water district were riding in the car of a co-worker on their way to work when their car was hit in the rear end by a truck driven by an employee of an iron works company.

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

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

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

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

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

The independent physicians who examined the crewman one year after the accident based their opinions on the MRI and CT Scans of the crewman taken at or around the time of the accident. They themselves did not subject the crewman to MRIs or CT Scans. The independent physicians did not even mention in their report that they conducted range of motion tests themselves. They based their own report on the same range of motion tests conducted at or around the time of the accident. The reports of the attending physicians of the crewman stated that he had significant loss of range of motion in his cervical and lumbar spine.
Thus, the defendant iron works company failed to submit admissible and credible proof on its motion alleging that the crewman did not sustain serious injury. The case is remanded for trial to determine the issue of liability for the serious injury.
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A employee of a nursing home also worked part-time at a realty office as a clerk. She was married and she had young children. She rode as a passenger in the car driven by a friend. The car she was riding in was involved in a car accident. She lost consciousness and was taken to the hospital in an ambulance. When she regained consciousness, she complained of pain in her neck, her spine, her shoulder, her wrist, her hips, her knees and her ankle.

The initial diagnosis was a fracture of her cervical spine. MRI and CT Scans as well as x-rays were taken of her but a fracture was ruled out. She stayed a total of three days in the hospital but she was later discharged. She was ordered to see a neurologist to determine the cause of her pain. She was also advised to see an orthopedist and a chiropractor for the management of the pain she was experiencing. She was also advised to undergo physical therapy.

The Westchester employee testified that she sustained a back injury at work sometime six years prior to the accident and she was also in a motor vehicle accident nine years prior to the accident. She experienced pain in her lower spine and legs but she also testified that the pain she felt then was not in the same area that she feels pain now. She claims that she can no longer lift heavy things the way she used to do before the accident in 2006. She worked in a nursing home and her duties include assisting the elderly patients and residents in the nursing home. After the accident, she can no longer stand or sit for long periods of time and she has difficulty assisting to the patients’ physical needs. She couldn’t engage in sports the way she used to do prior to the accident and she cannot do laundry anymore as laundry involved bending down and lifting heavy clothes, lifting wet clothes and putting them in the dryer. All the movements involved the use of her back which now gave her constant pain.

The Staten Island defendants filed a motion for summary judgment alleging that the woman’s injuries, although they may have included her spine, have already been resolved and so, they are not compensable as serious injuries under the Insurance Law. The defendants asked for the dismissal of the employee’s cause of action.

The Court held that the attending physicians of the employee were a neurologist, a radiologist and an orthopedist. They were all unanimous in finding that the condition of the woman’s spine was within normal range. However, they all agreed that there were bulging discs, dessicated discs and compressed discs that may be age related or may be caused by a degenerative disease. They all reported that leg raising and flexing of the lower back in various postures caused muscle spasms. They all opined that the pain constantly experienced by the employee may have been initially caused by age-related degenerative damage to the spine which was aggravated or exacerbated by the spinal injury she sustained in the car accident.

The Court resolved to deny the motion for summary judgment filed by the defendants. The Court found that the reports of the three physicians raise an issue of material fact which must be tried by a jury. The issues of material fact was whether or not the employee suffered indeed from age-related or degenerative spinal condition; and whether or not the accident caused an exacerbation or aggravation of a pre-existing spinal condition; and whether or not this constitutes a serious spinal injury which is compensable under the Insurance Law.
The case was remanded for trial on these issues.
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Petitioner, a sergeant with the Suffolk County Police Department, injured his back at the scene of a motor vehicle accidentin February 2004 when he slipped while moving the door of the vehicle-which had been removed by the fire department-so that rescue personnel would have better access to the accident victim. Petitioner’s application for performance of duty disability retirement benefits was denied by respondent New York State and Local Police and Fire Retirement System on the ground that petitioner was not permanently incapacitated from the performance of his duties. A Hearing Officer affirmed the denial of benefits following a hearing, and respondent Comptroller upheld this determination upon administrative review.

A board-certified orthopedic surgeon, testified that petitioner’s MRI showed “significant damage to the spinal column with multiple level herniations.” An EMG study revealed damage and irritation not only to the spinal cord, but to the nerves of the spinal cord. The orthopedic surgeon, who started treating petitioner eight months after his injury and continues to see petitioner every six weeks, concluded that the findings on these two objective tests were compatible with petitioner’s subjective complaints. The orthopedic surgeon diagnosed petitioner with lumbosacral herniated discs, sciatica and back pain, and he testified that petitioner’s injury was permanent. Reports were also put into evidence on petitioner’s behalf by an osteopath who treats petitioner three times a week, by an orthopedist who conducted an independent medical exam on behalf of petitioner’s employer, by another orthopedic surgeon who performed an independent medical exam on behalf of the Workers’ Compensation Board, and by a neurologist. Each physician concurred with the orthopedic’s finding of disc herniation and they also noted various levels of muscle spasm, and the degree of permanency noted in their reports ranged from “[p]artial moderate permanent” to total disability.

A report was also submitted into evidence by an orthopedic surgeon who examined petitioner on behalf of the Retirement System. The orthopedic surgeon diagnosed petitioner, after an exceedingly brief examination, with “resolved low back strain,” finding no muscle spasm and no evidence of disability. The surgeon testified, however, that if petitioner merely had a low back strain, the EMG and MRI would not have shown the nerve damage and disc herniation. Testimony further revealed that as a result of the herniation and radiculopathy, petitioner’s ability to sit, stand and lift are limited such that he cannot go into the field as he did prior to this incident, he continues to experience severe pain requiring continued Medication and, even though on light duty, he has missed over 130 days of work as a result of this incident compared to only 14 days missed due to injury in the 19 years prior thereto.

As the Retirement System concedes that petitioner’s injury occurred while he was on duty, the only issue with respect to petitioner’s application for benefits is whether he is permanently incapacitated from performing his duties, and petitioner has the burden to demonstrate such incapacity. The Comptroller “possesses the authority to resolve conflicting medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert articulates a rational and fact-based opinion premised upon a physical examination and consideration of the relevant medical records” (Matter of Clorofilla v Hevesi, 38 AD3d 1126, 1126 [2007]; see Matter of Freund v Hevesi, 34 AD3d 950, 951 [2006]). Given the testimony at the hearing, as well as the medical evidence submitted, the court find that the Comptroller’s determination that petitioner was not totally incapacitated from performing his duties as a field sergeant is not supported by substantial evidence and must therefore be annulled.
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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident on June 24, 2006 at approximately 8:45 a.m. The accident occurred at Hill Avenue at its intersection with Hempstead Turnpike, Hempstead, New York. Plaintiff alleges that he was stopped at a red light when the vehicle owned and operated by defendant rear-ended plaintiff’s vehicle. The police accident report states that “motor vehicle #1 in collision with motor vehicle #2.”

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

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

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

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

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

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

Plaintiff must come forth with objective evidence of the extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate. Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part.

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

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

The remaining submissions of plaintiff, which consisted of unaffirmed magnetic resonance imaging reports of plaintiff’s lumbosacral spine and cervical spine injury is also without probative value as they are unaffirmed. In addition, plaintiff failed to explain or address the prolonged gap in medical treatment. Finally, plaintiff has not sustained his burden under the 90/180 day category which requires plaintiff to submit objective evidence of a “medically determined injury or enforcement of a non-permanent nature which prevents the injured person from performing substantially all of the natural acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury”. When construing the statutory definition of a 90/180 day claim, the words ‘substantially all’ should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment.”

Specifically, plaintiff has no admissible medical reports stating that plaintiff was disabled, unable to work or unable to perform daily activities for the first ninety (90) days out of one hundred eighty (180) days, Plaintiff is only able to proffer his own self-serving proof that he missed 3-4 days of work; that he couldn’t go swimming in the ocean while on a working trip to Mexico; that he couldn’t go mountain biking anymore; or exercise as frequently as he used to.
In light of our determination, plaintiff’s motion for summary judgment on the issue of liability has been rendered moot. Accordingly, the Court held that the plaintiff’s motion is denied. The Defendant’s motion is granted. It is hereby ordered, that the plaintiff’s Complaint is dismissed.
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This 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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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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