Man's son caused accident and injuries

March 12, 2013,

This action arises from a motor vehicle accident that occurred on April 20, 2008. The complainant man’s vehicle was impacted from the rear by the accused man’s vehicle, while both vehicles were moving in the same lane of travel. The accused man’s vehicle was operated by his son at the time of the accident. As a result of the accident, the Long Island complainant claims to have suffered serious and permanent spinal injuries, including restricted range of motion in the areas of his lumbar and cervical spine.

Based upon his bill of particulars, the complainant is asserting claims of permanent consequential and significant limitation of use of a body function or system, and a medically determined injury or impairment of a non-permanent nature, which prevented him from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident claim.

It is well recognized that summary judgment or judgment without trial is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. The Court's analysis of the evidence must be viewed in the light most favorable to the complainant.

A party moving for summary judgment must make a legitimate showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. The accused parties must demonstrate that the complainant did not sustain a serious injury within the meaning of Insurance Law as a result of the accident. The accused parties have met their burden.

In support of their motion, the accused have submitted the complainant’s bill of particulars, the complainant’s deposition testimony, and the affirmed reports of the accused parties’ examining Manhattan orthopedic surgeon and radiologist.

On January 6, 2011, the accused parties’ examining radiologist reviewed the cervical and lumbar spine MRI studies taken on April 28, 2008 and May 20, 2008, respectively. Upon review, the radiologist set forth his impressions that the complainant suffers from multi-level spine injury, and that the findings on the MRI are not causally related to the reported accident of April 20, 2008. In addition, the radiologist did not find any disc herniations or bulges in the cervical spine, and only mild bulging in the lumbar spine that he attributes to the degenerative disease.

The MRI report of the cervical spine dated April 28, 2008 notes two bulging discs, which cause a slight spinal injury. The MRI report of the lumbar spine dated May 20, 2008 notes a herniated disc in the lumbar spine, also contributing to a slight spinal injury. Those MRI reports do not mention any degenerative disc disease, nor do they relate the findings to the subject accident.

Although the MRI reports and the radiologist’s review of same differ in various respects, the Court notes that, a tear in tendons, as well as a tear in a ligament or bulging disc is not evidence of a serious injury under the no-fault law in the absence of objective evidence of the extent of the alleged physical limitations resulting from injury and its duration. Thus, whether or not the radiologists agree on the interpretation of the MRI studies, the complainant must still exhibit physical limitations in order to sustain a claim of serious injury within the meaning of the Insurance Law.

The complainant was examined by the accused parties’ examining orthopedic surgeon, on January 21, 2011. The orthopedic surgeon reviewed a number of the complainant’s medical records, including the bill of particulars, MRI and nerve study reports, physical therapy and acupuncture notes, and the reports of the complainant's doctors and chiropractor. He measured range of motion in the complainant's cervical and lumbar spine areas with a goniometer. He also conducted various, other tests, including reflex, which were negative. He set forth his specific findings, comparing those findings to normal range of motion, and he concluded that the complainant's cervical and lumbosacral strains are resolved. According to the orthopedic surgeon, the complainant does not exhibit any objective evidence of a disability, is capable of full time, full duty work, and is capable of carrying on his activities of daily living.

Examining the reports of the accused parties' physician, there are sufficient tests conducted set forth therein to provide an objective basis so that his respective qualitative assessments of the complainant could readily be challenged by any of his expert(s) during cross examination at trial, and be weighed by the trier of fact. Thus, the accused parties have met their burden with respect to the permanent consequential and significant limitation of use categories of injury. As to whether or not the accused parties have sustained their burden on the 90/180 days injury claim, the Court considers the complainant's deposition testimony submitted with the instant motion.

An accused may establish through presentation of a complainant's own deposition testimony that a complainant did not sustain an injury of a non-permanent nature which prevented him from performing substantially all of the material acts, which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence. Moreover, a complainant's allegation of curtailment of recreation and household activities and an inability to lift heavy packages is generally insufficient to demonstrate that he or she was prevented from performing substantially all of his customary daily activities for not less than 90 days during the 180 days immediately following the accident.

The complainant’s deposition testimony establishes that he was working as a deliveryman at a deli prior to the accident, and that he missed only one week of work following the accident. He further admitted that he was not told by any medical professional that he could not work following the accident. Upon his return to work, he apparently suffered no change in his duties, and continued to work at the deli for almost three more years. He only ceased working at the deli because he moved to a different county. He further testified that he is currently unemployed and is not actively seeking employment.

As to his specific injuries, the complainant testified that he refused to go to the hospital on the date of the accident despite feeling pain in his neck, in addition to a headache. According to him, he received physical and chiropractic treatment through November or December 2008, at which time he ceased treatment. He did not offer a reason for his cessation of treatment. He admitted to taking only an over-the-counter pain reliever since the accident.

Aside from missing one week from work, the complainant testified that he can no longer play soccer because his lower back hurts, and that he can no longer go dancing because it hurts his back to do so. According to him, he used to play soccer with friends and go dancing once or twice a month before the accident. He also testified that he cannot carry his children, whose ages as of the deposition date in December 2010 were nine, six and four years old, or clean the bathtub. He was not forced to hire help for household chores, and he testified that he can lift grocery bags up to thirty (30) pounds. He had no future medical appointments at the time of his deposition.

Thus, the accused parties’ submission of the complainant’s deposition testimony, and affirmation of the accused parties’ physician are sufficient herein to make a legitimate showing that the complainant did not sustain a serious injury within the meaning of Insurance Law, under permanent consequential limitation and significant limitation categories of the applicable law, nor under the 90/180 category of the law.

The complainant is required to come forward with viable, valid objective evidence to verify his complaints of pain, permanent injury and incapacity. The complainant has failed to meet his burden. In opposition to the accused parties’ motion, the complainant has submitted the MRI reports previously referred to above, physical therapy and acupuncture notes, chiropractic evaluations, a pain management consultation report, and an affirmed report from his treating osteopath.

The osteopath doctor’s affirmed report fails to set forth by what means, or with what instrument, the complainant’s range of motion in the cervical and lumbar spine areas was measured. Thus, the accused has failed to establish an objective basis so that the respective qualitative assessments of complainant could readily be challenged by any of the complainant's expert(s) during cross examination at trial, and be weighed by the trier of fact. In addition, the osteopath doctor's report does not indicate with specificity when the examination results were obtained. Contrary to the complainant’s deposition testimony wherein he stated that he was not working because he had moved, the osteopath doctor noted that the patient was not working because of the accident. He was totally disabled. The osteopath doctor notes that the complainant’s gait was not counteracting. Thus, his report appears to be inconsistent with the complainant’s testimony and internally inconsistent as to the level of the complainant’s alleged disability.

Moreover, the osteopath doctor stated in his opinion and prognosis section that, in such type of injury there are nerves and disc pathologies as well as tearing of soft tissue components without addressing the degenerative disc disease findings of the radiologist, or the complainant’s previous accident. He also opines in general terms that there can be permanent limitations of motion to the cervical and lumbar spine due to the injuries sustained. He states in vague terms that, the patient remains impaired with regard to some functional capabilities thus his opinion that the complainant has sustained traumatic injuries as a direct causal result of the accident is rendered speculative and insufficient to raise a triable issue of fact.

The pain management physician also examined the complainant on November 25, 2008. Although he wrote that the complainant’s level of activity is severely limited, he did not report the basis for that conclusion. Instead, he noted that the complainant’s pain, at its worst, is 3 out of 10, and that the complainant continues to work as a driver. The pain management physician further states that the complainant is not limited in activities of daily living and that the complainant's pain does not interfere with the quantity and quality of his sleep, which the complainant reported as being six hours of restorative sleep. The pain management doctor concluded that the complainant has done well with therapy and his pain is minimal he has a mild partial disability from the motor vehicle accident dated 4/20/2008. The conclusion in November 2008 is markedly at odds with his initial statement that the complainant’s level of activity is severely limited, and also at odds with the osteopath doctor's October 2011 report that the complainant has sustained traumatic injuries.

For all the foregoing reasons, the Court has determined that the complainant has failed to raise a triable issue of fact with respect to the issue of serious injury within the meaning of Insurance Law. Accordingly, the accused parties' summary judgment motion is granted in its entirety, and the complaint is dismissed.

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A report was also submitted into evidence by an orthopedic surgeon

March 9, 2013,

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident on January 19, 2008 within a private parking lot on route 107, near its intersection with Lewis Street, in the town of Oyster Bay, Nassau County, New York.

A said that, in his bill of particulars, plaintiff alleges that he sustained the following injuries which are alleged to be permanent: Cervical muscle spasm, cervical radiculopathy, neck pain with upper extremity weakness, lumbar radiculopathy, right and left shoulder pains with numbness and tingling, decreased range of motion of the cervical spine, low back pain with lower extremity weakness, subluxation of the cervical spine and lumbar spine, headaches, muscle spasm of the lumbar spine, decreased range of motion of the cervical and lumbar spine injury, mid back pain, dizziness, inability to sit or stand for prolonged periods of time, difficulty performing everyday activities such as bending, lifting, and sitting necessity for prescribed pain medications, necessity for physical therapy, sleep disturbances, cervical spine tenderness with restricted range of motion, lumbrosacral spine tenderness with restricted range of motion, necessity for extended physical therapy, unable to perform household chores and loss of enjoyment of life.

Plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. A Manhattan doctor said that, defendant claims that the injuries plaintiff complains of in this accident of 2008 are not causally related to the 2008 motor vehicle accident, but rather are permanent injuries resulting from the 2002 accident. Defendant has presented objective medical testing from 2002 in order to establish the preexisting injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal injury canal. The report of August 29, 2002 indicated posterior disc bulges at C-5-6 and at C6-7 impinging on the anterior aspect of the spinal canal.. Therefore, plaintiff had bulging discs with impingement six years prior to the subject accident. Further, the nerve conduction examination performed on November 4, 2002 revealed abnormal results. The examining doctor states that "any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists." The electromygram exam performed by plaintiff's physician on November 20, 2002 after the prior accident was abnormal showing a mild right acute C6 radiculopathy. More recently, plaintiff's treating Westchester chiropractor, issued a report dated March 16, 2010 in which she opined that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002. Defendant claims that the evidence demonstrates that any permanent and consequential injuries and plaintiff's inability to perform activities of daily living were a result of the prior accident in August 2002 and not the subject accident on January 18, 2008.

As a result of the motor vehicle accident on January 19, 2008, plaintiff was taken to NUMC where x-rays were taken at the emergency room. The physician who interpreted the x-rays of his lumbar and thoracic spine reported no fractures, dislocation, or other significant bony abnormalities and reported that the intervertebral disc were normal in height. Defendants also submit plaintiff's deposition whereby plaintiff admitted that after the accident of 2008, plaintiff first sought treatment 2-3 days after the accident for physical therapy, and then received treatment for six to seven months thereafter. There is a gap in treatment by plaintiff's own admission. Finally, defendant submits an affirmed report from an orthopedic surgeon, who examined plaintiff and performed a range of motion tests using a goniometer a well as other clinical tests, and found that plaintiff's cervical strain with radiculitis, thoracolumbosacral strain, and bilateral shoulder contusion were all resolved. Defendants conclude by stating that there is no medical evidence to support plaintiff's claim that he was unable to work for 8 months and was prevented from performing substantially all of his customary daily activities for at least 90 days of the last 180 days.

A Lawyer said that, defendant filed a motion for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).

The issue in this case is whether plaintiff sustained serious injury as the result of the motor vehicle accident.

The Court said that, as a proponent of the summary judgment motion, defendants have 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 Court held that the defendants established their entitlement to judgment as a matter of law by submitting, the affirmed medical report of the doctor who examined the plaintiff in 2009 and found no significant limitations in the ranges of motion with respect to any of his claimed injuries, and no other new serious injuries within the meaning of Insurance Law § 5102(d) causally related to the collision in 2008. Defendant has shown the pre-existence of spinal injuries claimed by plaintiff relating to the 2002 motor vehicle accident. 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). The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that he sustained a serious spinal injury caused by the motor vehicle accident of 2008.

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 extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Where, as here, plaintiff sustained spine injury as a result of a prior accident, the plaintiff's expert must adequately address how plaintiff's current medical problems, in light of his past history, are causally related to the subject accident. 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.

In opposition, plaintiff submitted an affidavit dated January 26, 2011 from her treating chiropractor, which is deficient. The statements made by the chiropractor that the injuries are causally related to the 2008 accident are conclusory and purely speculative. In the absence of an explanation by the plaintiff's expert as to the significance of the degenerative findings and the prior accident, it would be sheer speculation to conclude that the accident of January 19, 2008 was the cause of plaintiff’s injuries. She does not address the findings on the MRI's of plaintiff's cervical and lumbar spine, positive nerve conduction and EMG testing that were present six years before the 2008 accident. Further, the affidavit is not based upon a recent examination of plaintiff. There is also no explanation provided by the chiropractor as to why her affidavit of January 26, 2011 contradicts the statement made in her report of March 16, 2010 that plaintiff suffered a permanent consequential disability with regard to his cervical and lumbar spine and is unable to perform his normal activities of daily living as a result of the accident on August 24, 2002.

Finally, there is also no explanation provided as to plaintiff's gap in treatment after the 2008 accident. In order to survive summary judgment "a plaintiff who terminates therapeutic measures following the accident, while claiming 'serious injury,' must offer some reasonable explanation for having done so ". Plaintiff's submissions are insufficient to rebut the prima facie case established by defendants entitling them to summary judgment as a matter of law. Accordingly, the Court held that defendants motion for summary judgment is granted.

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Driver must prove serious injury to collect insurance

March 7, 2013,

Two Queens male drivers were involved in an automobile accident on July 5, 2007. One of the drivers filed a complaint for damages under the “no fault” Insurance Law. Under this law, in order to maintain a personal injury action, the injured party must prove that he sustained a serious injury.

One of the male drivers sued under the Insurance Law, a spinal injury or a knee injury may be compensable if it is proved that the injured party has experienced a significant loss of use of the spine or knee that was injured.

In this action, the injured male driver presented the medical report prepared by his attending physician. His own Staten Island physician stated in his report that he suffered sprains and/or strains in his spine and in his right knee. He also opined that the prognosis for recovery of the injured male driver was excellent. That is, the injured male driver can look forward to full healing and full use without impairment of his spine and his right knee.

The neurologist consulted by the injured male driver also found that there he found no neurological impairment or difficulty that could medically explain the subjective complaints of pain that the injured driver was making. The neurologist observed no spasms or difficulty in moving. He also performed objective range of motion tests on the injured male driver and found no significant loss of use or loss of range of motion.

Both the injured male driver and the driver who was sued relied upon the MRI reports which were made at or around the time of the accident. These MRI reports on the right knee of the injured male driver showed that there were signs of degeneration in the meniscus or horn of the knee. The orthopedists of both the injured driver and the driver who was sued were in agreement that the degeneration in the knee of the injured driver was common to people of his age. They were also in agreement that the presence of the degeneration in the knee of the injured driver could not have been caused by the accident. Thus, it may be inferred that while there may be loss of use in the right knee, the loss of use in the right knee cannot be attributed to the accident. Instead, it is attributable to the normal process of ageing and of the normal wear and tear of the knee.

The injured driver presented an affidavit of his chiropractor who reported the course of his treatment of the injured driver’s spine. The court ruled that this was admissible but it cannot be given value to determine the nature and extent of the injured driver’s knee and spinal injury. The court also noted that the chiropractor reported that the injured driver stopped treatment only after a few months.

The driver who was sued asked that the injured driver be examined by his own orthopedist, neurologist and radiologist. All these doctors found that the MRI reports of the knee and spine of the injured driver had normal MRI of the knee; they also found that there is minimal multilevel age-related degeneration in his cervical spine. The radiologist found that there was no evidence of disc swellings or herniation or any abnormality that can be traced as proximately caused by the accident.

The driver who was sued filed a motion for summary procedure asking that the cause of action be dismissed for failure of the plaintiff to allege and to show at first blush that he suffered any serious injury that is compensable under the Insurance Law. The driver who was sued also pointed out that the injured driver did not even miss work for more than ninety days of the first one hundred eighty days immediately following the accident. The driver who was sued pointed out the complaint of the injured driver where he said that he missed only six to eight weeks or work.

The court granted the motion for summary judgment for failure of the injured driver to prove that he suffered a serious injury. He also failed to raise any material issue of fact that needs to be tried before a jury.

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Enterprise car is involved in an accident which causes injuries

March 5, 2013,

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff when her vehicle was struck by a vehicle owned and leased by the defendant Enterprise, and operated by the defendant Driver. The accident occurred on South Edgemere at or near its intersection with South Elmwood in the Town of East Hampton, Suffolk County, New York. By her bill of particulars, a rep said that the plaintiff alleges that as a result of said accident she sustained serious injuries including central posterior protruded disc herniation at C2-3, C3-4, C4-5; left paramedian posterior protruded disc herniation at C5-6 and C6-7; acute cervical sprain and strain with radiculitis; bilateral C5-6 cervical radiculopathy; aggravation of pre-existing spine injury to the lumbar spine; disc bulge at L3-4; disc bulge at L4-5 contacting left L4 nerve roots within the neural foramen; supraspinatus tendinosis in right shoulder; brachial neuritis; and tinitus in right and left ears. In addition, the plaintiff alleges that she was confined to bed from July 4, 2009 until August 4, 2009, except to attend medical appointments, and was confined to home from July 4, 2009 until September 29, 2009 and intermittently thereafter except to attend medical appointments. The plaintiff also claims that following said accident she was incapacitated from her employment as a director of resident relations in a company, as an assisted living facility, in Massapequa, New York from July 4, 2009 until September 29, 2009, from December 5, 2009 until December 9, 2009, and from December 30, 2009 until January 6, 2010.

A source said that, the NYC defendant Enterprise now moves for dismissal of the claims against it for failure to state a cause of action as well as for summary judgment based on 49 USC § 30106 (the Graves Amendment). Defendant Enterprise submits a faxed copy of an affidavit of its employee, that lacks an original signature. The Court considers said affidavit despite its defect. The said employee indicates in his affidavit that he is a regional risk supervisor for defendant Enterprise, and that the day before the subject accident, defendant Enterprise rented its vehicle, a Chevy vehicle, to defendant Driver who signed a rental agreement. He also indicates that a search of records related to said vehicle revealed no pre-accident complaints or evidence of any performance or maintenance problems, and that defendant Driver was not employed by defendant Enterprise on the date of the accident.

On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill that included the Graves Amendment, was signed into law. The Act is now codified at 49 USC § 30106. The section is entitled "Rented or leased motor vehicle safety and responsibility". "The section applies to all actions commenced on or after August 10, 2005, and has been enforced as preempting the vicarious liability imposed on commercial lessors by Vehicle and Traffic Law § 388".

A rep said that defendant Enterprise established that it is an "owner (or an affiliate of the owner) engaged in the trade or business of renting or leasing motor vehicles. In addition, the employee demonstrated through his affidavit that the plaintiff's allegations of failing to maintain the vehicle in a proper state of repair and respondent superior are unfounded such that there is no negligence or wrongdoing on the part of defendant Enterprise. Moreover, the plaintiff's vicarious liability claims pursuant to Vehicle and Traffic Law § 388 as against ELRAC are barred by 49 USC § 30106. The plaintiff failed to raise any opposition warranting the denial of defendant Enterprise’s request. Therefore, defendant Enterprise’s is entitled to dismissal of the complaint as against it.

A Lawyer said that, the defendant Driver seeks summary judgment in his favor dismissing the complaint as against him on the ground that the plaintiff failed to sustain a serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.

The issue n this case is whether plaintiff failed to establish serious injury as defined in Insurance Law § 5102 (d) as a result of the subject accident.

The Court said that, on a motion for summary judgment, the defendant has the initial burden of making a prima facie showing, through the submission of evidence in admissible form, that the injured plaintiff did not sustain a "serious injury" within the meaning of Insurance Law § 5102 (d). The defendant may satisfy this burden by submitting the plaintiff's own deposition testimony and the affirmed medical report of the defendant's own examining physician. The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers.

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."
"It is well established that in threshold serious injury cases, restrictions in range of motion typically are numerically quantified, compared to the norms, and based upon identified objective tests". "These requirements are applied to defendants seeking summary judgment, as well as to plaintiffs opposing summary judgment". The defendants must submit admissible medical evidence demonstrating that the plaintiff's range of motion was not significantly limited in comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height.

For a Queens plaintiff to recover under the "permanent loss of use" category, he or she must demonstrate a total loss of use of a body organ, member, function or system. To prove the extent or degree of physical limitation with respect to the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories, the plaintiff must provide either objective evidence of the limitation or loss of range of motion and its duration based on findings from an examination contemporaneous to the accident and a recent examination or the plaintiff must provide a sufficient description of the "qualitative nature" of his or her limitations, with an objective basis, correlating the plaintiff's limitations to the normal function, purpose and use of the body part.

The defendant Driver relies on the affirmed medical reports of the defendants' examining orthopedic surgeon, and examining neurologist. The report dated November 9, 2010 indicates that he examined the plaintiff on said date and performed range of motion testing of her cervical spine, right and left shoulders, right and left elbows, right and left wrist and hand, lumbosacral spine, and right and left ankle and foot using a goniometer. The doctor’s findings with respect to the cervical spine injury revealed decreased bilateral rotation of 30 degrees (normal 80 degrees), flexion of 10 degrees (normal 50 degrees), and extension of 10 degrees (normal 60 degrees), with no evidence of paracervical muscle spasm or atrophy. His findings regarding range of motion of the plaintiff's lumbosacral spine injury revealed decreased flexion of 30 degrees (normal 60 degrees) limited by pain, and normal extension, bilateral lateral bending and bilateral rotation but with complaints of pain at the extremes of motion. The doctor stated that the plaintiff has evidence of symptom magnification based on her complaints of pain in her lumbar spine when he lightly touched the skin overlying her paralumbar muscles, her complaints of pain in her lumbar spine when he rotated her body at the hips while maintaining her lumbar spine completely stable, and her complaints of pain radiating from her head to her lower back when he tapped the top of her head. The doctor noted that there was no paralumbar muscle spasm or loss of normal lumbar lordosis and that straight leg raising was bilaterally full and pain free. In conclusion, the doctor opined that the plaintiff showed evidence of a resolved cervical hyperextension injury, resolved left foot contusion, resolved right shoulder strain, and resolved low back strain. He also opined that she had evidence of symptom magnification and noted that the range of motion examination is a subjective test under the voluntary control of the individual being tested. The doctor concluded that the spinal injuries appeared to be causally related to the subject accident, that the plaintiff had no pre-existing conditions affecting her recovery, and that she was presently able to perform the duties of her occupation.

The doctor indicated in his report that he examined the plaintiff on November 8, 2010 and found a normal neurological examination. However, he reported that the plaintiff's spinal range of motion testing with a goniometer revealed lumbar flexion to 20 degrees (60 to 90 degrees normal), cervical flexion to 20 degrees (50 to 60 degrees normal), cervical extension to 20 degrees (40 to 60 degrees normal), and cervical lateral flexion to the left was 20 degrees (45 degrees normal) and cervical lateral flexion to the right was 25 degrees (45 degrees normal). The doctor also reported that the plaintiff needed effort to rotate to the left and rotated to the right 20 out of the maximum 80 degrees. He concluded his report by diagnosing cervical sprain injury superimposed upon cervical degenerative disc disease, ossified ligaments and congenitally narrowed spinal canal, and subjective headaches, "cervically mediated from spondylosis and sprain/strain." He opined that there was no evidence of cervical radiculopathy, lumbosacral radiculopathy, or central or peripheral nervous system dysfunction and that the plaintiff's reduced range of motion was secondary to spondylitic disease and diminished effort. He further opined that there was no causally related neurologic injury or impairment but that the cervical sprain appeared to be causally related to the subject accident, superimposed upon pre-existing degenerative changes, and that her lumbar condition appeared to be an entirely pre-existing condition.

Here, the Court held that the defendant Driver failed to meet his prima facie burden of establishing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident. The doctor reported the existence of significant limitations in the plaintiff's cervical and lumbosacral spine range of motion more than a year after the subject. Although he stated that the plaintiff had evidence of symptom magnification and that range of motion testing is subjective, he failed to substantiate those conclusions with objective medical evidence. In addition, it appears that the doctor also found significant limitations in range of motion of the plaintiff's cervical and lumbar spine, the extent of which is difficult to determine. He reported ranges of motion for the plaintiff's lumbar flexion, cervical flexion, and cervical extension that were expressed in certain or definitive numerical degrees but he failed to provide the corresponding certain or definitive normal values and instead gave ranges or spectrums of degrees spanning 10 to 30 degrees for his normal standards of comparison. When a normal reading for range of motion testing is provided in terms of a spectrum or range of numbers rather than one definitive number, the actual extent of the limitation is unknown, and the Court is left to speculate. Furthermore, both physicians failed to address the plaintiff's claim, as set forth in her bill of particulars, that she sustained a medically-determined personal injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the accident. Neither physician related his findings to this category of serious injury for the period of time immediately following the subject accident. Inasmuch as the defendant Driver failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiff's papers submitted in opposition to his motion for summary judgment were sufficient to raise a triable issue of fact.

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Woman slips as she leaves a bus

March 2, 2013,

A woman took the bus. As she was about to go down from the bus, while walking down the aisle toward the exit, she slipped on something slippery on the floor. She had a slip and fall which landed her on her bottom. She sustained spinal injury, specifically in her lumbar spine and cervical spine.

The Staten Island woman sued the transit authority which operated the bus along with the city government which owned the bus. After the depositions were taken and discovery was closed, the transit authority filed a motion for summary procedure asking that the woman’s complaint be dismissed for failure to show that she sustained a serious injury.

The woman opposed the motion for summary judgment arguing that this is not the usual motor vehicle accident and that she was not suing merely under a “no fault” law. She claims to have raised issues of negligence. She claims that the transit authority and the city government did not exercise reasonable care in keeping the buses safe for passengers and clean enough so that passengers would avoid a slip and fall while riding on the bus.

The only question is whether or not the motion for summary judgment should be granted.
The Court held that a summary judgment is a drastic remedy that cannot be lightly used.

Once a motion for summary judgment has filed, there is a requirement that the person seeking the summary judgment of dismissal has discharged his burden of proving the grounds for his motion. When this happens then the opposing party must be given an equal opportunity to provide evidence showing that there are material issues of fact that needs to be tried before a jury.

The Court held that the issue of whether or not the transit authority exercised reasonable care is a material question of fact that has a direct bearing on whether or not the transit authority is liable in damages. There is also the issue of whether or not the plaintiff’s slip and fall accident and the resulting spinal injury could have been caused by contributory negligence on her part. Because these two material issues of fact have yet to be determined, the motion for summary judgment cannot be granted.

However, the Court decided to rule on the branch of the motion for summary judgment that alleged that the woman did not suffer a serious injury that allows the payment of damages under the Insurance Law. The Court noted that the transit authority submitted a medical report prepared by an orthopedic surgeon who examined that the woman. In this medical report, the orthopedist reported that the woman suffered a sprain in her cervical spine, in her lumbar spine and in her left knee. However, the Westchester orthopedist noted a pre-existing degenerative disc disease in her spinal cord and pre-existing arthritis in her left knee joint.
The transit authority also submitted the medical report of a neurologist who examined the woman just before trial. He found that there was no permanent neurological impairment, disability or abnormality. He concluded that he only found sprain and contusions in her cervical spine and lumbar spine.

A psychiatrist also examined the woman before trial and he reported that the woman was capable of performing the usual activities of her daily life without restrictions. The psychiatrist noted that the woman suffered from depression and anxiety after the accident but these issues have already been resolved.

A radiologist took and MRI of the woman’s left knee and left shoulder and found that there was mild impingement in the joint that is consistent with the usual wear and tear associated with age and with chronic degenerative spinal disease.

The Court concluded that the woman failed to raise an issue of material fact as to the seriousness of her spinal injury. The case is dismissed except as to the claim for negligence and as to the claim of injury which resulted in temporary disability for 90 days after the accident.

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A forty-seven year old warehouseman for a closet manufacturing company

February 27, 2013,

A forty-seven year old Staten Island warehouseman for a closet manufacturing company was operating a forklift at the workplace. This was his regular duty for the past three and a half years of employment there. Also as part of his regular job, he lifted boxes to and from the stocks. On May 16, 1996, the warehouseman was unloading a pallet of boxes. A box fell from the pile and hit him on the back of the head. He experienced pain and the weight and sudden impact of the box caused him to fall on his knee. After that incident at work, he began to experience back and neck pain.

He went to see a Westchester neurosurgeon to determine the injury he suffered and to get a diagnosis of what caused his pain. The employer and the servicing agent agreed to compensate the warehouseman and to pay him temporary disability benefits. Medical tests were conducted and the neurosurgeon discovered that the warehouseman had a preexisting medical condition called spinal stenosis. It is a kind of arthritis of the spine. It is congenital and degenerative. A traumatic injury is sometimes the first sign that a person suffers from spinal stenosis. Here, when the box fell on the warehouseman’s head, his back was twisted and the nerves in his lower spine bruised against his bone causing pain.

The neurosurgeon recommended treatment through physical therapy and restricted his lifting of heavy objects at work and in daily activities. The warehouseman’s back and neck pain was not resolved so the neurosurgeon recommended that he go on a diet to lose excess weight to relieve the weight carried by his spine but still the pain was not alleviated. In 1997, a year after the accident, the neurosurgeon recommended surgery to repair the damage to his spine.
The employer refused to pay for the surgery and stopped paying temporary disability to the warehouseman. This prompted the warehouseman to file a claim for compensation and for authorization for the surgery as well as temporary disability benefits until his maximum medical improvement.

At the trial, the neurosurgeon testified that the pain and impairment experienced by the warehouseman was attributable by seventy-five per cent to the preexisting spinal stenosis and only twenty-five per cent to the accident. The neurosurgeon concluded that the pre-existing medical condition of spinal stenosis was the major contributing cause of the warehouseman’s disability and he even opined that sooner or later, even if the warehouseman did not have the accident, he would have needed surgery on his spine.

The judge of compensation claims found that the accident in the workplace was the major contributing cause to the warehouse man’s need for a surgery on his spine. The judge took into consideration that the warehouseman has been doing manual labor for the past twenty years or so and he has not experienced back pain or disability. At his present employment, he has been working for three and a half years and he has never missed a day of work due to pain or disability until after the accident. The judge then concluded that it was the accident and not the stenosis that was the major contributing cause of the warehouseman’s pain.

The only question is whether or not the warehouseman’s disability should be compensated.
The Court found that the judge of compensation claims did not err in ruling that the warehouseman’s disability is due to the accident at the workplace and not due to the preexisting medical condition.

The Court takes note of the fact that the warehouseman was unaware of the preexisting medical condition and he has not experienced any pain because of it. The pain he suffered and which debilitated him began only after the accident at the workplace. The preexisting medical condition of spinal stenosis was aggravated or made worse by the accident. The accident was compensable.

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In this case, plaintiffs filed an action to recover damages

February 24, 2013,

In this case, plaintiffs filed an action to recover damages against the defendants for the injuries allegedly sustained by the plaintiff in a car accident on February 16, 2009, on Motor Parkway at or near its intersection with Express Drive North, County of Suffolk, State of New York, when Plaintiff was operating his vehicle and it was struck by the vehicle owned by defendants.

Plaintiff alleged that he sustained injuries consisting of, inter alia, lumbar disc herniation at L4-5 impinging on the anterior aspect of the spinal canal and the nerve roots bilaterally; lumbar sprain and strain with muscle spasms, severe pain, tenderness, swelling, and permanent and significant restriction and limitation of motion; posterior disc herniation at C5-6 and C6-7 abutting the anterior aspect of the spinal cord; possible cervical radiculopathy; cervical sprain, strain, with muscle spasms, severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion; right knee sprain, strain, contusion; peripatellar bursitis; severe pain, swelling, tenderness, and permanent and/or significant restriction and limitation of motion.

The defendants sought summary judgment dismissing the complaint on the basis that the injuries claimed failed to meet the threshold imposed by Insurance Law § 5102 (d).

Jurisprudence dictates that It is for the court to determine in the first instance whether a prima facie showing of "serious injury" has been made out. The initial burden is on the defendant "to present evidence, in competent form, showing that the plaintiff has no cause of action."

Defendants submitted, inter alia, the sworn report their orthopedist; the sworn report of their neurologist; and the sworn report of Plaintiff’s orthopedist.

Plaintiff’s orthopedist reported, inter alia, that the range of motion examination is a subjective test under the voluntary control of the individual being tested, thus raising credibility issues which are to be determined by the trier of fact. The court's function is not to resolve issues of fact or to determine matters of credibility but rather to determine whether issues of fact exist precluding summary judgment.

Plaintiff’s orthopedist also submitted admissible evidence to demonstrate findings of a herniated lumbar disc and a deficit in the lumbar flexion range of motion. While such injuries may constitute evidence of serious injury based upon objective findings, the defendants' expert does not comment on the cause of the cervical disc herniations and does not rule out that the cervical herniated discs were not caused by the subject accident.

Defendant’s orthopedist reported, inter alia, that the plaintiff did not show clinical findings consistent with radiculopathy on the date of the examination, thus raising factual issue with the EMG findings and determinations made relative to that test. He also does not believe that further intervention is needed and that the plaintiff has sustained full and maximal recovery.
Defendant’s orthopedist does not address the issue of proximate cause of the injuries and does not rule out that the herniated discs were not caused by the subject accident, nor does he dispute that the plaintiff sustained such injuries. Thus, Defendant’s orthopedist has not established prima facie that the plaintiff did not sustain a serious injury based upon the diagnosis of both cervical and lumbar herniated discs. The two opposing orthopedist have set forth differing normal range of motion values for lumbar extension and lateral rotation, and for cervical flexion and rotation. Defendant’s orthopedist did not state a measurement for cervical rotation. Thus, this Court is left to speculate as to what the normal ranges of motion are, and what the range of motion for cervical rotation finding was upon Defendant’s orthopedist examination. Defendant’s orthopedist has also failed to set forth the objective method employed to obtain the range of motion measurements he reported for the plaintiff's cervical and lumbar spine, such as the goniometer, inclinometer or arthroidal protractor, leaving it to the court to speculate as to how he determined such ranges of motions when examining the plaintiff.

Defendant’s neurologist reported, inter alia, that Nassau Plaintiff presents with ongoing subjective post-traumatic symptoms of intermittent pain in his posterior neck and low back regions.

Additionally, the defendants' examining physicians did not examine the plaintiff during the statutory period of 180 days following the accident, thus rendering defendants physician's affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the plaintiff was unable to substantially perform all of the material acts which constituted his usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident, and defendants' experts do not comment on the same.

Based upon the foregoing, the defendants have not established prima facie that the plaintiff did not sustain a serious injury within the meaning of Insurance law § 5102 (d) or 5104. The court had no other recourse but to deny the motion.

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A bagel shop clerk met an accident

February 21, 2013,

A Brooklyn bagel shop clerk met an accident while driving near the corner of West Merrick and Rockaway Avenue: her car collided with another car on August 21, 2007. As a result of the accident, the bagel shop clerk missed two weeks of work. The pain she felt prevented her from lifting baskets of bagels as she had been doing previous to the accident. She was unable to stand behind the counter for long periods of time as she had been doing before the accident. She held down another part-time job at a clam bar and was also enrolled as a full time college student. She missed two weeks of classes after the accident and she had to stop working at the clam bar.

The owner of the bagel shop allowed the clerk to reduce the number of hours she had to work. She also allowed her more frequent breaks and excused her from having to lift heavy objects while on duty. Still, the woman was unable to continue working full time: she began working part-time and clocked only eighteen hours of work every week. The pain in her neck and back intensified and she resigned from her employment.

She received treatment consistently since the accident and stopped treatment and therapy only when her “no-fault” insurance ran out and she could no longer afford the treatments and therapy. She filed a case in damages seeking compensation for her spinal injury under the Insurance Law. She claims that the use of her cervical spine and lumbar spine has been significantly limited; she also claimed that the spinal injury she sustained resulted in non-permanent impairment which prevented her from performing all the activities of daily living within ninety days from the accident.

The defendant filed a motion for summary judgment asking that the cause of action for damages be dismissed for failure of the plaintiff to present initial proof that the spinal injury she sustained was a serious injury.

The defendant asked that the bagel shop clerk be examined by an orthopedic surgeon. The orthopedic surgeon found that there was no evidence of any spinal injury: there was no fracture, no atrophy of the discs; no bulging or swollen discs and no derangement of the discs in her spine. The orthopedic surgeon also used a hammer, sensory pins and measuring tape to objectively determine the presence of pain or paralysis. He also measured the bagel shop clerk’s range of motion and found these within normal limits. He concluded that there is no evidence of disability resulting from the accident.

For her part, the bagel shop clerk presented the medical findings of the Westchester orthopedic surgeon who treated her within two weeks after the accident. She also presented the report of findings of the neurologist/pain expert who examined her. The orthopedic surgeon noted tenderness in the cervical spine and lumbar spine. He also noted spasms in the cervical and lumbar spine. He found that the bagel shop clerk’s range of motion was restricted and he traces the cause of her loss of use of her neck and lower back to the accident. He also noted that he recommended that she be examined by a pain specialist. He recommended steroid injections directly into the areas of the spine that experienced the pain. In the two years that she had been receiving treatment since the accident, the pain persists and the doctor has opined that if her pain persists, she will be a candidate of surgical repair on her spine.

The court denied the motion for summary judgment, ruling that the bagel shop clerk has succeeded in proving that there are issues of material fact that have to be determined by a jury at trial on the nature and extent of her spinal injury and of the disability she has suffered.

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A fifty-three year old medical secretary had been working at a hospital for a number of years

February 19, 2013,

A fifty-three year old Nassau medical secretary had been working at a hospital for a number of years when on December 29, 1967 she slipped on a door sill. The medical secretary fractured her left hip. A nail and a pin were used to repair the medical secretary’s hip. She was confined to bed at a nursing home for six months. The medical secretary filed a claim for permanent total disability benefits. After her surgery, a neurologist examined the medical secretary and found that she was also suffering from a spinal degenerative process and that around thirty to fifty per cent of her condition was related to the degenerative disease instead of to the accident.

For this cause, the employer refused to pay the permanent total disability benefits after six months. The employer claims to have paid for her medical care until maximum medical improvement had been reached. After the sixth month, the total disability of the medical secretary was no longer due to the accident at work but it was due to the pr-existing spinal disease.

At the trial, the Suffolk doctor to whom the medical secretary was assigned testified that the medical secretary had worked for him for years. And he had been largely satisfied with the medical secretary’s work performance. However, he had noticed that the medical secretary’s health has been consistently and continuously deteriorating. She had lost a lot of weight and appeared severely malnourished. She had difficulty walking and often, she had to brace herself because she was unsteady on her feet. The doctor testified that had the medical secretary not injured herself, he would have asked her to resign. Her work has deteriorated just before the accident. If the medical secretary applied for a job on the day of his accident, he would not have hired her. He thought that the woman’s severe malnutrition could also be the reason why a slip resulted in a severe fracture.

The judge of Industrial Claims was sympathetic with the medical secretary but he denied her claim. He did not think that the accident aggravated the medical secretary’s underlying psychological and neurological disease. He also found that the medical secretary’s disabilities were not aggravated by the injury she sustained at the workplace. Despite this, the judge found that the woman was now completely unemployable.

The only question on appeal is whether or not the accident and the resulting disability to the medical secretary are compensable.

The Court finds that her immediate supervisor knew that the medical secretary was already disabled even before her accident and while she was working on the job. The immediate supervisor was a medical doctor and he observed that the medical secretary’s health was already failing. She could barely move and walked very slowly; he noted that her behavior was becoming more and more eccentric and if he even testified that if she had not been injured, she would have been terminated because of her disability. Her disability was obvious for a long time. After the accident the medical secretary was no longer able to work. It is clear that her disability was aggravated by the injury she sustained at the workplace. The mental and emotional collapse which accompanied the injury is also a disability. At the time of her injury her work was passable—it was a downgrade from the good and excellent work she used to be capable of but at the time of her spinal injury, her work was still acceptable. The Court found that the Judge of Industrial Claims erred when he did not find her disability compensable under the Special Disability Fund.

The order of the Judge of Industrial Claims is reversed and remanded.

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On 7 March 1991 and on 14 June 1991, the Family Court of New York County

February 16, 2013,

First Case:

On 7 March 1991 and on 14 June 1991, the Family Court of New York County made a finding of neglect against the subject parents and ordered a year of minimal supervision by the Child Welfare Administration, respectively. An appeal from the order followed.

The court finds that the orders must be are affirmed, without costs.

As the Family Court Act provides, a prima facie case of abuse or neglect is established by proof of injuries sustained by a child of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the care of such child. Once a prima facie case is established, the burden of coming forward with the proof shifts from the petitioner to the parents to offer a satisfactory explanation to rebut the evidence of abuse.

Here, the court finds that the ruling of the Family Court that the subject child was neglected was supported by evidence and that he sustained a spiral fracture of his upper right arm while in the sole care of his parents. This injury, according to the expert testimony of two witnesses, would not have been caused by the child's spina bifida. Further, while there was some testimony by the mother that the injury could have been caused by the infant's two and one-half year old brother, other testimony demonstrated that it was unlikely that a two and one-half year old child would have the strength or dexterity necessary to inflict such an injury. Moreover, despite the overwhelming medical evidence that the child would have experienced extreme pain immediately after the injury, and the pain would have continued for several days, the mother testified that prior to the morning of 10 October 1989, when she brought the subject child to the Institute for an evaluation as to his spina bifida, she observed no swelling or discoloration of the right arm and no indication the child was suffering pain or discomfort. The uncontroverted medical testimony was that multiple signs of injury, including swelling, discoloration, lack of movement of the arm and pain whenever the arm was touched, would have been clearly apparent to the parents and they should have sought medical treatment sooner than October 10. Thus, the record establishes that the parents failed to take prompt and appropriate action to obtain medical treatment for the child after the injury to his arm was readily discernible. In addition, the Queens Family Court did not abuse its discretion in concluding the parents required the continued services of the agency and ordering a twelve month period of supervision. In any event, since the dispositional order has expired, the issue of the length of the supervision is now moot.

Second Case:

On 7 August 1991, the Supreme Court of Ulster County granted certain defendants' motions for summary judgment dismissing the complaint against them. An appeal from the said judgment followed.

There are two actions involved which allege medical malpractice arising out of the labor and delivery of plaintiff at a Hospital in Ulster County on 16 January 1980. The first action seeks to recover damages for the pain and suffering plaintiff experienced during a prolonged and difficult labor, during the birth of her son, however, permanent injury is not alleged; she also seeks damages for the emotional distress allegedly incurred by her due to the condition of her infant; and includes a derivative cause of action on behalf of plaintiff's husband. The second action was commenced on behalf of the infant seeking damages for injuries he sustained at the time of his birth. Nonetheless, the herein appeal is limited to the dismissal of the complaint in the first action.

Here, the court finds that plaintiff did not sustain any physical injury and by reason of the fact that her pain and suffering was not alleged to be permanent, but that the pain was associated with the childbirth process resulting from the prolonged labor and delivery of her son, it is not actionable. In view thereof, in the absence of an independent physical injury to plaintiff, her cause of action seeking recovery for emotional or psychic harm occasioned by the birth of her child in an alleged impaired state must also fail. Thus, with the plaintiff having failed to set forth a cognizable claim, the derivative action of plaintiff's husband must also fail. On plaintiff’s claim that defendants have failed to support their motion for summary judgment with an affidavit of merit, the court finds this untenable. The evidence in the record clearly establishes as a matter of law that plaintiffs have no cognizable claim. Therefore, the Supreme Court correctly granted summary judgment to defendants dismissing the complaint in the first action. In sum, the judgment appealed is affirmed, with one bill of costs.

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Defendant moves, pursuant to CPLR § 3212

February 14, 2013,

Defendant moves, pursuant to CPLR § 3212, for an order granting summary judgment due to plaintiff's failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. Plaintiff opposes defendant's motion. A Lawyer said that, the action arises from a motor vehicle accident involving a collision between a motor vehicle operated by plaintiff and a motor vehicle owned and operated by defendant. The accident occurred at approximately 4:00 p.m. on August 21, 2007, on West Merrick Road at its intersection with Rockaway Avenue, Valley Stream, Long Island. On or about May 21, 2008, plaintiff commenced this action by service of a Summons and Verified Complaint. Issue was joined on June 19, 2008.

The issue in this case is whether The Bronx defendant is entitled to his motion for summary judgment on the ground that plaintiff did not sustained serious injury as defined under the Insurance law.

The Court held 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.

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 plaintiffs examining physicians. However, unlike the movant's proof, unsworn reports of the plaintiffs 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.

Conversely, even where there is ample proof of a plaintiff’s personal 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.

Plaintiff claims that as a consequence of the above described automobile accident with defendant, she 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).
The Court said that, 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 plaintiffs 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 plaintiffs 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, this Court will now turn to the merits of the defendant's motion. In support of her motion, the defendant submits the pleadings, plaintiff's Verified Bill of Particulars, plaintiff's hospital records from treatment at the Franklin Hospital Medical Center Emergency Room, the report of plaintiff's treating physician. A board certified orthopedic surgeon, reviewed plaintiff's medical records and conducted a physical examination of plaintiff. Based on his clinical findings and medical records review, the doctor’s diagnosis of plaintiff was "lumbar sprain with no clinical evidence of neuromotor deficits, no clinical evidence of herniated discs, radiculitis or radicupathy. Cervical sprain with no clinical evidence of neuromotor deficits, no clinical evidence of herniated discs, radiculitis or radicupathy. Right Shoulder contusion with no clinical evidence of internal derangement." The orthopedic surgeon concluded "it is my orthopedic opinion that the claimant has no evidence of orthopedic disability related to the accident.


With respect to plaintiffs 90/180 claim, defendant relies on the deposition of the plaintiff which indicates that, at the time of the accident, she was working as a cashier and that she missed approximately two weeks of work. Plaintiff also testified that, in October 2007, she began working one day a week at Vincent's Clam Bar in Carle Place, New York. Plaintiff further testified that she was enrolled as a full time student at Nassau Community College from September 2006 through May 2008 and that she missed one week of classes after the accident and several classes in the following months. Based upon this evidence, the Court finds that the defendants have established a prima facie case that the plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102(d).

The burden now shifts to the plaintiff to come forward with evidence to overcome the defendants' submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained. To support her burden, plaintiff submits the affirmed reports of D.O., who began treating plaintiff in September 2007 (approximately two weeks after the alleged car accident), the affirmed report of an MD, FAAPMR, who conducted a pain consultation for plaintiff. All of the aforementioned affirmations and the medical reports accompanying same indicate that plaintiff had indeed incurred a serious injury.

Accordingly, the Court concludes that the affirmations and affidavit provided by plaintiff clearly raise a genuine issue of fact as to injuries causally related to the accident. Consequently, defendant's motion for summary judgment is hereby denied.

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The plaintiff sustained serious and catastrophic injuries

February 12, 2013,

The plaintiff sustained serious and catastrophic injuries when he fell while traversing a trench at a construction site in the Bronx. As a result of plaintiff's fall into a trench at the job site he became impaled on a reinforcement bar (rebar) that was surgically removed several hours after his admission to the hospital. It is in this setting that the jury, after a trial and after hearing testimony from plaintiff's physicians and other experts regarding the devastating and traumatic nature of the personal injuries he sustained, rendered a verdict in the sum of $86 million including $20 million for past pain and suffering and $55 million for future pain and suffering.

A Lawyer said that, plaintiff's treating physician, the Director of Spinal Cord Services at Helen Hayes Hospital, described in explicit detail the nature and effect of the spinal injuries plaintiff incurred. The Doctor provided the court and jury, inter alia, with a graphic picture of plaintiff's suffering, stating in part, that the pain plaintiff continues to experience "is of two types. He has nerve pain in his legs, and that nerve pain is perhaps one of the worst pains that you could think of. Imagine somebody stabbing you with a knife, a gazillion times, or with a pin all over the place. That numbness, that tingling, that stabbing sensation" is "present all the time, but it is a constant pain and that pain will not go away." He depicted plaintiff's chronic pain by providing the jury with a vivid description of the damage to plaintiff's spinal column when the rebar went into the area of his spinal cord and the compression fracture also caused by the pipe entering his body. He described the emotional pain sustained by the plaintiff caused by the distress of no longer having the ability to walk and the nerve pain emanating from his legs which he testified was permanent. The jury also heard testimony regarding plaintiff's chronic bed sores, his cauterization in order to urinate, his inability to control bowel movements, constant urinary tract infections and repeated hospitalization for the conditions described by the Brooklyn Doctor.

A Lawyer said that, the defendant moves pursuant to CPLR §4404 and §5501, to reduce the damages awarded to the plaintiff, after a jury trial, contending that the award is excessive and materially deviates from fair and reasonable compensation.

The issue in this case is whether the damages awarded to plaintiff is excessive and materially deviates from fair and reasonable compensation.

The Court said that, manifestly, pain and suffering awards are not subject to precise standards that permit a purely mathematically evaluation in order to determine whether a verdict deviates materially from what is reasonable compensation. CPLR §5501 requires that: "In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation."

It is well established that the language quoted, although specifically directed to the appellate courts, also applies to the trial court mandating the trial court to review jury awards to determine whether the award is excessive or inadequate. Consequently, review under CPLR 5501 requires the trial court to evaluate whether the award deviates from comparable awards and as the court observed, reviewing comparable awards "cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate." It is also evident that review of jury verdicts for personal injuries to ascertain whether the award is reasonable, involves questions of fact.

Defendant referred this Court to several cases in an effort to convince the Court that the award, in the instant case, is not fair and reasonable. At the outset, this court acknowledges that the verdict rendered by the jury in the case at bar is unprecedented in view of the evidence presented regarding plaintiff's spinal injuries and the jury award clearly exceeds what can be considered fair and reasonable. However, this recognition regarding the size of the verdict in the instant case does not automatically carry with it the court's determination that the award falls within the boundaries which defendant suggests would be a fair and reasonable award for the plaintiff, who concededly is a paraplegic experiencing constant pain.

Evaluation of prior awards, in similar personal injury cases is intended to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict so that issues such as prejudice or sympathy do not become the motivating factor for the award. The trial court, therefore, in reviewing a jury award must consider the nature of the injury sustained by the plaintiff, the plaintiff's age, the physical condition of the plaintiff prior to the occurrence, the permanency of the injury sustained, plaintiff's ability to return to gainful employment, the pain, both physical and emotional, experienced and to be experienced in the future, the extent of future hospitalization and ascertain whether the award in part was generated by the devastating effect of plaintiff's injury. Here, x rays introduced at the trial showing the presence of the rebar that entered plaintiffs body clearly invoked sympathy by the jury causing in part, a huge verdict that was intended to compensate the plaintiff not only for pain and suffering he sustained but the grief experienced by the impact of the steel rod entering his body. Manifestly, modification of damages awards cannot be based on past precedents alone.

This Court's review of the cases set forth in this opinion denotes the factors which are considered in assessing what would be reasonable compensation. This process, now completed, does not however provide a clear picture that permits the application of some formula that identifies the limits of compensation for injuries that parallel plaintiff's suffering. It is undisputed that plaintiff who at one time was a strong and vibrant man is now a wheelchair bound paraplegic. The devastating injury he sustained was caused by the pipe that upon entering his body destroyed his bowel requiring a colostomy bag to collect his waste matter and he is required to manage his bladder with catheters. Plaintiff's nerve pain in his legs is continuous and permanent. Such injuries, including those previously described, including the permanency of his injuries and his inability to return to gainful employment, are the factors that this court has applied in determining what would be reasonable compensation.
For the foregoing reasons, this Court grants defendant's motion to set aside the verdict as excessive unless within 30 days after service of a copy of this decision and order with notice of entry plaintiff stipulates to reduce the jury award for past pain and suffering from $20 million to $5 million; for future pain and suffering from $55 million to $10 million, and for future medical related expenses from $10 million to $8,295,000.

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