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.
Accident happens everywhere all hours of the day. Sometimes, it arises because of someone’s negligent action though some are caused by technical errors. If you suffered a serious injury from a car crash, you can seek legal assistance from the New York City Injury Lawyers or NYC Personal injury Attorneys. You can also consult with the NY Spine Injury Lawyers if you desire to avail of their expertise. Simply call or visit Stephen Bilkis and Associates’ office.