This action was instituted by the plaintiff for alleged personal injuries sustained in a motor vehicle accident occurring on January 27, 2003 at approximately 12.21 a.m. on Barton Avenue at or near its intersection with Valley Road in Patchogue, Suffolk County on Long Island, New York. A source said that, the plaintiff alleges that the defendant taxi company, being driven by co-defendant, attempted to make a left turn from Barton Avenue, eastbound, onto Valley Road without signaling and came into contact with the plaintiff’s vehicle which was proceeding straight on Barton Avenue in a westerly direction. The plaintiff claims she hit the steering wheel and was bleeding from her left knee. This lawsuit thereafter ensued.
A Lawyer said that, the defendants now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint on the grounds that the plaintiff has not sustained a “serious physical injury” as that term is defined in Insurance Law §5102(d). The defendants submit medical proof to substantiate their claim that the plaintiff failed to sustain a “serious injury” in the car accident. The plaintiff opposes the requested relief in an attorney’s affirmation arid submission of the plaintiff’s deposition but proffers no medical proof to substantiate the claim of a “serious physical injury”.The issue in this case is whether plaintiff sustained serious personal injury as defined under the Insurance Law.
The function of the Court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is `arguable; `issue finding, rather than issue determination is the key to the procedure.
Although the question of the existence of a “serious injury” is often left to the jury, where properly raised, the issue of whether a plaintiff is barred from recovery in a judicial forum for want of a “serious injury” is, in the first instance, for the Court’s determination. If it can be said, as a matter of law, that plaintiff suffered no serious injury within the meaning of the Insurance Law, then plaintiff has no claim to assert and there is nothing for the jury to decide.
Section 5104 of the Insurance Law provides that an individual injured in an automobile accident may bring a negligence cause of action only upon a showing that the individual has incurred a “serious injury” within the meaning of the no-fault law. Insurance Law §5102(d) defines “serious injury” as a personal injury which results in death; dismemberment, significant disfigurement and 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 can establish that a plaintiff’s personal injuries are not serious within the meaning of Insurance Law §5102 (d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and concluded that no objective medical findings support the plaintiff’s claim. With this established, the burden shifts to the plaintiff to come forward with admissible evidence to overcome the defendants’ submissions by demonstrating a triable issue of fact that a serious injury was sustained within the meaning of the Insurance Law. In this situation, the plaintiff must present objective medical evidence of the injury based upon a recent examination of the plaintiff. However, the plaintiff does not provide any medical documentation even though confronted by the defendants with three medical experts attesting to their examination of the plaintiff and their findings that plaintiff suffers from no significant limitation of use of a body function or system or permanent consequential limitation of movement or use of a body member.
Furthermore, the New York Court of Appeals has stated that a sufficiently described opinion by a doctor on the “qualitative nature of the plaintiff’s limitations based upon the normal function, purpose and use” of that body part is sufficient even without specific degrees of limitation or an arbitrary cutoff of degree. However, the Court of Appeals went on to state that a diagnosis of a bulging or herniated disc, by itself, does not constitute a serious physical injury and the plaintiff must provide objective evidence of the extent and degree of any alleged physical limitation resulting from the spinal injuries, the duration and causality to any limitation of motion.
Generally a soft tissue injury with cervical and low back sprain does not meet the threshold for serious spinal injury. These were the types of injuries which the legislature hoped would no longer burden the court system under the no-fault scheme. Neither are subjective complaints of transitory pain due to cervical and lumbar sprains sufficient. Here, in the case at bar, the defendants present the affirmation of the doctor who conducted a neurological medical examination and found no neurological disability and normal range of motion tests; an orthopedic medical evaluation of the plaintiff by the doctor who found no permanent or residual injuries and who found no limitations of movements on the tests conducted and set forth in his medical report; and an affirmed radiological medical examination by the radiologist who found normal spinal alignment and no injury causally related to the accident. The Court finds that the defendants have met their burden of proof by the reports and affirmations of the medical authorities submitted on this motion.
At that point, supported by objective testing, it was incumbent upon the plaintiff to produce competent medical testimony and evidence showing that she sustained a serious physical injury. Plaintiff has failed to so assemble any competent medical proof to refute the defendants’ medical findings of no serious injury. The plaintiff has failed to substantiate a permanent or serious physical injury with an objective test or finding. The proof adduced by the plaintiff relies upon unsupported conclusions by the plaintiff’s attorney in his affirmation and the plaintiff’s deposition testimony. Plaintiff’s conclusory statements of undifferentiated pain and discomfort and range of motion restrictions, standing alone, without objective testing results or degrees of limitation is fatal to her complaint. She fails to raise a factual issue requiring a denial of the defendants’ motion.
Here, in the case at bar, the Court is confronted with soft tissue injuries and subjective complaints of pain by the plaintiff in conclusory fashion only. The defendants detail the medical reports by the defendants’ doctors suggesting no restrictions of movement or range of motion or any other pathology to support an injury. Clearly, the failure to submit some medical authority to support the plaintiff’s subjective complaints of pain is fatal to her opposition to the defendants’ motion and supports summary disposition and dismissal of the action.
Accordingly, under the facts and circumstances as presented in this case and after reviewing the deposition of plaintiff and the defendant, all the medical exhibits submitted in support of the motion and none being offered in opposition thereto, the Court concludes that the plaintiff has failed, as a matter of law, to establish the threshold of sustaining a serious physical injury or any causal relationship with the motor vehicle accident occurring on January 27, 2003. A review of the medical submissions has failed to raise a triable issue of fact that the plaintiff sustained a serious physical injury and therefore, the defendants’ motion for summary judgment and dismissal of the plaintiff’s action pursuant to CPLR §3212 is hereby granted and the plaintiff’s action is dismissed.
Generally a soft tissue injury with cervical and low back sprain does not meet the threshold for serious injury. In order to claim damages under the Insurance Law, one must prove that he sustained serious injury from the accident. You will need the legal advice of a Suffolk Personal Injury Attorney and Suffolk Spinal Injury Attorney in order to explain to you what falls within the meaning of “serious injury”. Suffolk Injury Attorney can represent your day in Court. Call us at Stephen Bilkis and Associates for free consultation.