May 7, 2014

Civil Practice Law Rules...cont


In support of his motion, the man have submitted an attorney's affirmation; copies of the pleadings and the woman’s bill of particulars; an uncertified copy of the police car accident report; an unsigned copy of the transcript of the woman’s examination before trial; and the sworn report of an orthopedic doctor concerning his independent orthopedic examination of the woman. Initially, the Court notes that the unsworn police accident report constitutes hearsay and is inadmissible. The unsigned deposition transcript of the woman is not in admissible form and is not considered on the man’s motion nor is the unsigned transcript accompanied by an affidavit pursuant to Civil Practice Law Rules.

Based upon a review of the admissible evidence, the man has failed to establish a legitimate entitlement to summary judgment dismissing the complaint.

The orthopedic doctor reviewed an MRI of the thoracic spine which indicated that there is a minimal posterior disc herniations causing minimal spinal injury. He also reviewed an MRI of the cervical spine performed on September 5, 2008 which states that the woman experience reversal of the cervical lordosis with multilevel disc bulges and uncovertebral joint hypertrophy, causing spinal and left foraminal stenosis at multiple levels, as well as mild cord compression at several levels as described. While disc herniation and limited range of motion based on objective findings may constitute evidence of serious injury, the orthopedic doctor does not comment on the findings and does not rule out whether the injuries were causally related to the accident.

Although the orthopedic doctor used a goniometer and tape measure to determine the woman’s range of motion of the cervical spine and shoulders, he compares his findings with the average ranges of joint motion rather than the normal ranges of motion. This creates factual issues in that he has not set forth the age group, sex, or other variable factors in determining an average range of motion, thus leaving it to the Court to speculate on what is meant by average. The orthopedic doctor’s report is deficient inasmuch as the standard of comparison used, average range of motion, does not comport with the required comparison to the normal range of motion one would expect of a healthy person of the same age, weight, and height, leaving it to the Court to speculate under what circumstances the average range of motion is determined. The orthopedic doctor’s examination revealed range of motion deficits in cervical flexion and deficits in shoulder range of motion for abduction of both shoulders; forward shoulder flexion, and D8 of both shoulders which range of motion denomination is not explained.

Additionally, although the orthopedic doctor notes there is spinal cord compression at several levels of the cervical spine, no report by an examining neurologist has been submitted to comment on the claimed injury and he also fails to address all the woman’s claimed injuries. Based upon the foregoing, the accused man has failed to demonstrate entitlement to summary judgment dismissing the complaint on the issue of whether the woman sustained a serious injury within the meaning of Insurance Law.

The orthopedic doctor did not examine the woman during the statutory period of 180 days following the accident, thus rendering his affidavit insufficient to demonstrate entitlement to summary judgment on the issue of whether the woman was unable to substantially perform all of the material acts which constituted her usual and customary daily activities for a period in excess of 90 days during the 180 days immediately following the accident.

The factual issues raised in the accused man’s moving papers preclude summary judgment. He failed to satisfy his burden of establishing a legitimate case that the woman did not sustain a serious injury. Inasmuch as the moving parties have failed to establish their legitimate entitlement to judgment as a matter of law in the first instance it is unnecessary to consider whether the opposing papers were sufficient to raise a triable issue of fact as the burden has not shifted. Accordingly, motion by the accused man for dismissal of the complaint on the serious injury threshold is denied.

May 3, 2014

Civil Practice Law Rules

This is a personal injury action allegedly sustained by a woman when she was involved in a motor vehicle accident in New York. A man was the operator of the vehicle when it came into contact with the vehicle operated by the woman.

The woman claims in her bill of particulars that as a result of the within accident she sustained injury and pain in her muscles and her left shoulder; headaches; tightness in the left shoulder to the neck area; limited motion and burning sensation in the left shoulder blade; mid back and neck pain; spine injury; aggravation of reversal of spinal injury with multilevel disc bulges. The accused seeks summary judgment to dismiss the complaint because the woman’s claimed serious injuries fail to meet the threshold imposed by the Insurance Law.

The advocate of a summary judgment motion (judgment without trial) must make a legitimate showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. The opponent has the initial burden of proving entitlement to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Once such proof has been produced, the burden then shifts to the opposing party who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form sufficient to require a trial of any issue of fact and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established. Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the Court to direct a judgment in favor of the opponent as a matter of law.
Pursuant to Insurance Law, serious injury means 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 medical 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.

The initial burden is on the man to present evidence in competent form, showing that the woman has no cause of action. Once the man has met the burden, the woman must then, by competent proof, establish a legitimate case that such serious injury exists. Such proof, in order to be in competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the woman.

In order to recover under the permanent loss of use category, the complainant 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, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the qualitative nature of the woman’s limitations, with an objective basis, correlating the woman’s limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.


To Be Cont....

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April 29, 2014

On 26 September 2001, an automobile accident occurred involving a woman who was pregnant...cont

The Ruling of the Court:

On the Standard of Review:

As the rules provide, the standard of review of an ALJ's interpretation of the NICA statutory scheme is de novo. The ALJ's determination with regard to the qualification of the claim for compensability purposes under the statute is conclusive and binding as to all questions of fact. However, an ALJ's final order is reversible on appeal where its findings of fact are not supported by competent, substantial evidence.

On the Rebuttal Presumption under Section 766.309(1)(a):

The NICA Plan was established by the Legislature to provide no-fault compensation for birth-related neurological injuries to infants. The purpose of the statutory plan is to limit a participating physician's exposure to civil liability in cases where the doctor's professional involvement could make him, or her, a defendant in a lawsuit. The remedies provided under the NICA Plan preclude all other legal remedies available to an injured infant, the parents, or legal representatives. While the benefit paid under the plan is more restricted than the remedies provided by tort law, the plan does not require the claimant to prove malpractice and provides a streamlined administrative hearing to resolve the claim. As the NICA Plan provides, a birth-related neurological injury is an injury to the brain or spinal cord (spinal injury) of a live infant caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant both permanently and substantially mentally and physically impaired. If the infant's injury satisfies this statutory definition, the infant qualifies for financial benefits under the NICA Plan. When considering whether a claimed injury is a birth-related neurological injury for the purpose of the plan, an ALJ must consider all available evidence.

Here, the parties stipulated that the subject infant is permanently and substantially mentally and physically impaired. The ALJ found that the injury was a neurological one; that is, it involved the brain or the spinal cord. There was no dispute below concerning whether the infant has sustained a neurological injury. Given the stipulation and the ALJ's findings of fact, the court holds that the ALJ erred as a matter of law in not applying the presumption of compensability. The court finds that the subject infant indeed suffered multi-system failure as a consequence of the oxygen deprivation she suffered between 12:47 p.m., when the fetal monitor was disconnected and the mother was moved to the operating room, and 1:22 p.m., when she was delivered, that likely continued during the immediate post-delivery resuscitative period. Shortly after delivery, she was placed in the special care nursery where she remained through October 3. The time between the infant’s delivery by caesarean section and the events through October 3 constituted the immediate post-delivery period in the hospital for purposes of the NICA Plan. The court is not persuaded that legal representatives of an injured claimant can ignore or waive the presumption under section 766.309(1)(a). Under this section, the presumption arises upon the presentation of evidence demonstrating the required injury. While it is true that claimants bear the initial burden of proof under section 766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law. As the Legislature explained in its statement of findings and intent set forth in section 766.301, physicians practicing obstetrics are the most severely affected by rising costs of medical malpractice insurance, and the costs of a birth-related neurological injury are particularly high. The Legislature found that these circumstances warrant the establishment of a limited system of compensation irrespective of fault. Thus, under the NICA statutory scheme it is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. As the ALJ recognized, the ultimate goal in construing a statutory provision is to give effect to legislative intent. Applying the presumption of compensability here best serves the Legislature's intent. But then again, dispensing with the presumption at the request of a claimant would undermine that intent.

In sum, the court finds that the ALJ erred as a matter of law in failing to apply the rebuttable presumption. Thus, the order of the Division of Administrative Hearings dismissing the petition must be reversed, and the cause must be remanded for further proceedings. On the remaining issues raised on appeal, the court finds them moot in view its ruling.

April 27, 2014

On 26 September 2001, an automobile accident occurred involving a woman who was pregnant

The Facts of the Case:

On 26 September 2001, an automobile accident occurred involving a woman who was pregnant. As a result of the injuries sustained, the mother was transported to a nearby hospital where fetal testing was performed. She was then transported to another hospital via helicopter. That same day, after declining into kidney failure, the mother underwent a caesarean section. The condition of the infant at the time of her delivery was a matter of controversy. Although the infant required manual resuscitation, her Apgar scores at birth and within minutes of birth were in the normal range. However, it is undisputed that the infant experienced renal distress as well as spinaldamage. She was placed in the special care nursery.

On 3 October 2001, while still in the special care nursery, the infant experienced pulmonary bleeding and then pulmonary arrest leading to multi-organ failure and seizure activity. She was later diagnosed with a neurological injury, cerebral palsy, although the time the neurological injury or brain injury was sustained remains a matter of controversy. It was only after the October 3 episode that the infant was examined by a pediatric neurologist.

Sometime in 2006, the mother and her husband (plaintiffs) filed a personal injury action for medical malpractice in circuit court against their obstetrician, his professional association, and fourteen other defendants. The circuit court proceedings were abated for a determination by DOAH as to whether the infant's injuries were covered by the State’s Birth-Related Neurological Injury Compensation Plan (hereafter, the NICA Plan). The plaintiffs had already filed a petition with DOAH to determine compensation under the Plan. In their petition, the plaintiffs described the child's condition at birth as follows: By the time of her birth by cesarean section, the infant had suffered a hypoxic ischemic event that caused permanent brain damage or brain injury; the infant then suffered further injury to her brain during the first several days of life, well after the immediate post-delivery resuscitative period.

Thereafter, the Division of Administrative Hearings (DOAH) in which the administrative law judge (ALJ) found that the subject infant did not qualify for coverage by the State’s Birth-Related Neurological Injury Compensation Association (NICA Plan). Thus, appeals followed. Before the court are consolidated appeals.

The Issue of the Case:

The primordial issue before the court for determination is whether or not the injuries suffered by the subject infant was covered by the State’s Birth-Related Neurological Injury Compensation Association or the NICA Plan.

To Be Cont...

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March 9, 2013

A report was also submitted into evidence by an orthopedic surgeon

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 painwith 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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March 7, 2013

Driver must prove serious injury to collect insurance

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 spinalinjury 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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February 14, 2013

Defendant moves, pursuant to CPLR § 3212

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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February 2, 2013

Petitioner, a sergeant with the Suffolk County Police Department

Petitioner, a sergeant with the Suffolk County Police Department, injured his back at the scene of a motor vehicle accident in February 2004 when he slipped while moving the door of the vehicle—which had been removed by the fire department—so that rescue personnel would have better access to the accident victim. Petitioner's application for performance of duty disability retirement benefits was denied by respondent New York State and Local Police and Fire Retirement System on the ground that petitioner was not permanently incapacitated from the performance of his duties. A Hearing Officer affirmed the denial of benefits following a hearing, and respondent Comptroller upheld this determination upon administrative review.

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

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

As the Retirement System concedes that Staten Island petitioner's injury occurred while he was on duty, the only issue with respect to petitioner's application for benefits is whether he is permanently incapacitated from performing his duties, and petitioner has the burden to demonstrate such incapacity. The Comptroller "possesses the authority to resolve conflicting medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert articulates a rational and fact-based opinion premised upon a physical examination and consideration of the relevant medical records" (Matter of Clorofilla v Hevesi, 38 AD3d 1126, 1126 [2007]; see Matter of Freund v Hevesi, 34 AD3d 950, 951 [2006]). Given the testimony at the hearing, as well as the medical evidence submitted, the court find that the Comptroller's determination that petitioner was not totally incapacitated from performing his duties as a field sergeant is not supported by substantial evidence and must therefore be annulled.

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January 15, 2013

On June 8, 2010, the doctor performed an independent orthopedic evaluation

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident on June 24, 2006 at approximately 8:45 a.m. The accident occurred at Hill Avenue at its intersection with Hempstead Turnpike, Hempstead, New York. Plaintiff alleges that he was stopped at a red light when the vehicle owned and operated by defendant rear-ended plaintiff's vehicle. The police accident report states that "motor vehicle #1 in collision with motor vehicle #2."

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

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

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

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

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

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

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

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

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

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

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

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January 12, 2013

An automobile accident occurred and, as a result

An automobile accident occurred and, as a result, the appellee suffered serious injuries. He was taken to a Medical Center where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. However, these physicians misinterpreted appellee’s x-rays and radiological studies, and negligently concluded that he did not suffer a recent spinal injury, specifically a spinal column injury. Consequently, the attending Bronx surgeon and assistant encouraged appellee to attempt to walk approximately a week after the automobile accident. When he arose from the bed, appellee felt a shock and collapsed. He was then transferred to another Medical Center, a Regional Medical Center (second Medical Center), where he underwent surgery on his spine, but the surgery was not successful in reversing the spinal column damage, the spinal injury. The appellee then retained a lawyer of a certain law firm to investigate and initiate a legal malpractice action against the various physicians. The lawyer considered joining the physicians individually in the malpractice suit but, for various reasons, he decided not to join. He sent an “intent to sue” only to the two Medical Centers and its physicians. However, when the complaint was filed, the first Medical Center was not named. Thereafter, during discovery, the lawyer realized that the second Medical Center’s defense was based upon the comparative fault of the first Medical Center and its physicians. At this point, the statute of limitations had already expired, and the lawyer realized the potential of a legal malpractice claim for failing to join them. Thus, the lawyer then contacted his insurance company and referred the appellee to a new counsel.

The appellee and the second Medical Center, and its physicians, entered into a settlement agreement in the amount of $1,000,000, and then brought a legal malpractice action against the lawyer and his firm, which the Westchester Insurance Company agreed to settle for the policy limits. However, the parties disputed whether the "per claim" amount applied or whether the "aggregate" amount applied. Specifically, the parties disputed whether the attorney's failure to name the first Medical Center and each individual physician constituted independent wrongful acts or a single claim. So, the appellee filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because the lawyer committed multiple wrongful acts, the appellee claimed that he was entitled to the aggregate limits. The Insurance Company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act; that, since there was only one claim, the appellee was entitled to only $250,000 in coverage. The trial court agreed with the appellee and, on motion for summary judgment, entered a judgment in favor of the appellee for the aggregate limits. Based upon its interpretation of the policy, the trial court found that there were several acts of malpractice during the legal representation of appellees. Thus, the trial ruled that the appellees were entitled to the aggregate policy limits. The Insurance Company now appeals the said judgment.

The issues for the court’s determination is whether or not, pursuant to the insurance policy of the law firm the aggregate policy limit should apply where the appellee’s attorney committed multiple wrongful acts by failing to join several defendants in his medical malpractice action; whether or not, because each of the defendants had separate insurance coverage available to pay a damage award, appellee had multiple claims against his attorney.

The insurance company argues that appellee has only a single claim because he suffered one injury, that is, he did not receive his full recovery because the attorney failed to join all the proper defendants before the statute of limitations tolled; that even if the failure to sue each defendant is considered a wrongful act, these wrongful acts are related to the appellee’s sole malpractice claim against his attorney.

The appeal arises from a dispute regarding the policy limits of a legal malpractice insurance policy. The insurance policy in dispute is a "claims-made" policy which covers claims made against the insured during the policy period. The policy specifically provides that the insurance company shall pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period; that a claim means a demand received by the insurance company or an insured for money or services; and that a wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an insured. Under the conditions of the policy, the maximum amount that the insurance company will pay for each claim is the limit shown in the declarations as "per claim" for all claims and claims expenses arising out of or in connection with the same or related wrongful act; that this limit applies regardless of the number of persons that are insured under the policy or the number of claimants; that the aggregate, subject to the aforementioned condition, maximum amount that the insurance company will pay for all claims and claims expenses will not exceed the limit shown in the declarations as aggregate; and that all wrongful acts for which claims, or incidents which will later become claims, reported during the policy period are included.

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

Here, the court finds that the Insurance Company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. Notably, there was but one demand for money, namely the lost recovery because of the failure to join various other defendants and thus one claim. Even if the appellee had multiple claims against his attorney, the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The California Supreme Court has already ruled in one case that, when a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained, there can only be a single claim under the attorney's professional liability insurance policy. Applying that rationale to the case at bar, the appellee retained an attorney to recover damages he incurred as a result of several physicians' negligent conduct, but was unable to recover the full extent of his damages because of the attorney's failure to include all the responsible defendants in his action. While the attorney's negligent omission may be considered multiple wrongful acts, the appellee suffered only one injury, that is, an award that does not represent the full extent of his damages.

In sum, the alleged wrongful acts of the attorney were related and resulted in a single claim. While there were several wrongful acts, they were all related and constituted but one claim of legal malpractice under the policy language. Thus, the court finds that the judgment appealed from must be reversed and remanded for an entry of a declaratory judgment determining that the policy limit "per claim", and not the aggregate limit, applies.

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January 10, 2013

The issue in this case is whether plaintiff sustained serious injury

This is an action to recover damages for personal injuries allegedly sustained by plaintiff wife as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, approximately 500 feet west of South Oyster Bay Road, in the County of Nassau. New York on May 13. 2008. The accident allegedly occurred when the vehicle operated by defendant and owned by the other defendant struck the rear of the vehicle operated by plaintiff husband while it was stopped in traffic. Plaintiff at the time of the accident was a front seat passenger in the vehicle operated by her husband,. By her bill of particulars, plaintiff alleges that she sustained various personal injuries as a result of the subject accident, including straightening of the cervical and lumbar curvature; disc bulges at levels C3 through C6 and level L4-L5; vertebral subluxation complex; and derangement of the left shoulder. Plaintiff alleges that she was confined to her bed and home for approximately two days immediately after the accident. Plaintiff further alleges that she was totally incapacitated from her employment as a registered nurse at the Hospital for approximately three days following the accident and continues to be partially incapacitated from her employment to date.

A Westchester doctor said that, defendants now move for summary judgment on the basis that plaintiffs alleged spinal injuries do not meet the "serious injury" threshold requirement of Insurance Law § 5102(d). In support of the motion, defendants submit a copy of the pleadings, plaintiffs’ deposition transcript, and the sworn medical reports of the doctors. At defendants' request, a neurologist, a chiropractor, and a physiatrist licensed in medical acupuncture, conducted independent examinations of plaintiff on September 23, 2008. A Lawyer said that, plaintiff opposes the instant motion on the ground that defendants failed to meet their burden of establishing that her injuries do not come within the meaning of the serious injury threshold requirement of Insurance Law § 5102(d). Alternatively, plaintiff asserts that she sustained spinal injuries within the "limitation of use" and the "90/180 days" categories of serious injury as a result of the accident. In opposition to the motion, plaintiff submits her own affidavit, the affidavit of her treating chiropractor, , and the sworn medical reports of her doctors.

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

The Court said that it has long been established that the "legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries". Therefore, the determination of whether or not a plaintiff has sustained a "serious injury" is to be made by the court in the first instance.

Insurance Law § 5102 (d) defines a "serious injury" as "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
A defendant seeking summary judgment on the ground that a plaintiffs’ negligence claim is barred under the No-Fault Insurance Law bears the initial burden of establishing a prima facie case that the plaintiff did not sustain a "serious injury". When a defendant seeking summary judgment based on the lack of serious injury relies on the findings of the defendant's own witnesses, "those findings must be in admissible form, such as, affidavits and affirmations, and not unsworn reports" to demonstrate entitlement to judgment as a matter of law. A defendant may also establish entitlement to summary judgment using the plaintiffs deposition testimony and medical reports and records prepared by the plaintiffs own physicians.

Once defendant has met this burden, plaintiff must then submit objective and admissible proof of the nature and degree of the alleged injury in order to meet the threshold of the statutory standard for "serious injury" under New York's No-Fault Insurance Law. However, if a defendant does not establish a prima facie case that the plaintiff’s injuries do not meet the serious injury threshold, the court need not consider the sufficiency of the plaintiffs opposition papers.

Initially, the Court notes that the report submitted by defendants' chiropractor, is inadmissible, inasmuch as it was not sworn to before a notary or other authorized official does not allow for a chiropractor to affirm the truth of his statement with the same force as an affidavit. Thus, defendants' failure to submit the chiropractor's report in admissible form requires that it be excluded from consideration.

However, defendants have established their prima facie burden that plaintiff did not sustain a serious spinal injury within the meaning of Insurance Law § 5102(d). The reports of defendants' various experts state that plaintiff has full ranges of motion in her cervical and lumbar regions when compared with the normal ranges of motion for those areas. The reports also state that although plaintiff complains of minimal tenderness upon palpation over the cervical and lumbar spines, no muscle spasm is elicited when the cervical or lumbosacral musculature is palpated and that there is no tenderness upon palpation of the thoracic spine. The reports further state that the cervical and lumbar spines sprains that plaintiff sustained as a result of the subject accident have resolved and that plaintiff is capable of performing all of her daily living activities without restriction. Furthermore, reference to plaintiffs own deposition testimony sufficiently refuted the "limitation of use" categories of serious spinal injury and the "90/180 days" category under Insurance Law § 5102(d).

Therefore, the burden shifted to plaintiff to come forward with competent admissible medical evidence based on objective findings, sufficient to raise a triable issue of fact that she sustained a "serious injury". A plaintiff alleging an injury within the limitation of use categories must present either objective medical evidence of the extent, percentage or degree of the limitation or loss of range of motion and its duration in order to prove the extent or degree of physical limitation he or she sustained. A sufficient description of the "qualitative nature" of plaintiffs limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part may also suffice. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

In opposition, plaintiff raised a triable issue of fact as to whether she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. Plaintiff relies upon the affidavit of her treating chiropractor, which states that he initially began treating plaintiff on May 2, 2008 and continued to treat her until February 2010. Dr. Wright's affidavit reveals that plaintiff had significant range of motion limitations in her cervical and thoracolumbosacral regions contemporaneous with the subject accident, and that those limitations still were present when he re-examined plaintiff on September 25, 2010. He opines that plaintiff's range of motion limitations are permanent and are the direct result of the subject accident. The report further states that the spinal injuries plaintiff's sustained as a result of the accident will "inhibit her ability to carry out her normal living activities of daily living, which involve prolonged sitting, standing, bending, walking, lifting or extreme physical exertion."

Contrary to defendants' contention, plaintiff adequately explained her gap in treatment. The doctor’s explanation for the gap in treatment essentially is that plaintiff reached her maximum medical improvement and any further treatment would have merely been palliative in nature. Furthermore, inasmuch as plaintiff established that at least some of her injuries meet the "No Fault" threshold, it is unnecessary to address whether her proof with respect to other injuries she allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment. Accordingly, defendants' motion for summary judgment is denied.

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January 8, 2013

This appeal from the lower tribunal’s order stemmed from a vehicular collision case

This appeal from the lower tribunal’s order stemmed from a vehicular collision case. The complainant man stated that he was stopped at a traffic light when a car crash into his vehicle and pushed it into a third vehicle ahead. On impact, he went forward in the seat but was restrained by the seatbelt. He felt his neck snap and had a shooting pain down his arm. The man received medical attention at the emergency room for neck and back discomfort with weakness on his knees. The man was restricted from strenuous physical activity such as lifting. At the time of the incident, the man was only 25 years old.

A chiropractor treated the man six days after the car accident and received complaints of neck pain, headaches, discomfort of the shoulder and upper and lower back, dizziness, fatigue, and nausea. The Queens chiropractor subsequently explained that the man had suffered a permanent injury to the supportive structures of his spine. He also made an initial determination that the impairment was 5 percent, but after reviewing a subsequent myelogram and noting the presence of a lumbar fracture, he explained that the permanency would be significantly greater, 15 percent. While continuing the treatment, the chiropractor referred the man to a neurologist.

The complainant man worked as a technician in aircraft electronics. At about five weeks after the automobile collision, he and a co-worker lifted a 100-pound test station drawer from the floor to a workbench while performing a normal task at work, after which the man noticed back pain and stiffness. After three days of prescribed bed rest and heat packs, he returned to work, but the lifting restrictions were reinstated. Before and after the lifting incident, the man already received treatment from the chiropractor for his low back problems.

The Staten Island neurologist treated the man for only about a month. The medical evidence indicates that the neurologist felt that the man probably would require ongoing physical or chiropractic therapy and medications. Although the neurologist did not anticipate then that any surgery was foreseeable or would be necessary in the near future, his medical records did not mention the presence of a spinal injury specifically, an avulging compression lumbar fracture of the L5 vertebra body. Furthermore, he was unaware that the man had undergone a cervical fusion at the C6-C7, low neck level.

Another neurologist saw the man for an independent medical examination. The neurologist reviewed the x-rays and several CAT scans indicated a preexisting congenital small canal where the spinal cord and roots are located. The condition can make one person more susceptible to an injury. A whole body myelogram showed a central herniated disk at C6-7 consistent with a traumatic episode like the automobile accident.

Upon the neurologist's referral for possible surgical management of a low back problem, a neurosurgeon treated the man once. His findings after reviewing the myelogram and CAT scan are consistent with the neurologist’s, and the neurosurgeon noted some impression in his medical report.

In his deposition, the neurosurgeon concluded that the possibility of future low back surgery will depend on the man's symptoms and progress over time. He discovered an avulsion compression fracture on the films previously ordered by the first neurologist. Based on records, an avulsion fracture is a condition where a ligament that is attached to the bone is under sufficient stress that it pulls off a piece of the bone, whereas a compression fracture indicates that the bone is crashed. He also explained that the man's injuries are more consistent with a traumatic event than with a bending and lifting injury. None of the physicians testified that the man's avulsion fracture is attributable to the lifting incident. The neurosurgeon's review of the medical studies indicated that the man will undergo surgery with continued complaints. Specifically, he also testified that the man will need separate procedures that can be performed at the same time. He then stated that such procedures could cost around $25,000.00.

The aircraft electronics neurosurgeon also saw the man. He testified that the CAT scan of the lower back was definitely not normal and that the MRI report indicated multiple disc bulges that could have been caused or aggravated by trauma. He also found a herniation in the lower part of the neck and discerned evidence of a fracture at the L5 vertebra.

At the final visit with the neurologist, the man underwent another independent medical examination. The doctor found that two and one-half months after the surgery, the man had no significant relief from low back pain, especially as his activity level increased. The neurosurgeon also indicated that if the man had no further recovery from his neck problems, he would have a 7 percent impairment of the whole person regarding the cervical and lumbar regions. That figure approximates about a 14 percent total body impairment, which she characterized as probably fairly significant.

The opponent cited a portion of the record indicating that subsequent to the man's automobile and lifting accidents, a military review board initially found him to have a 10 percent psychological impairment but no physical impairment. But, a complete picture of the history of the military's findings indicates that the man appealed that initial rating and received a 20 percent disability rating from the reviewing of the physical evaluation board, based on the diagnosis of degenerative disc disease at multiple levels of the lumbar spine with foraminal stenosis at C5-C6.

The opponent also relies in large measure on the first neurosurgeon's medical records suggesting that the man was not a surgical candidate and that the bulging discs were not the cause of his pain.

The neurosurgeon predicted eventual surgery to decompress the L-5 roots at L5-S1, and the first neurosurgeon subsequently deferred to the opinion that the man will require an extensive back surgery. Additionally, the first neurosurgeon initially was unaware that the man had undergone a cervical fusion at C6-C7 level.

The first neurologist deferred to his partner neurologist, whose treatment continued for nearly two years beyond. There are two key matters on it which includes the man's condition or limitations in relation to the car accident and the seven percent permanent impairment ratings to the neck and low back. In his deposition, the first neurologist stated that he had no opinion of his own as to whether the man has a permanent injury, and he defended his prior diagnoses as reflections of how he had felt at the time. He acknowledged that additional information was received after his last treatment of the man, and he qualified his initial findings by observing that his feelings may be somewhat different over the long-run case.

Consequently, the court carefully considered the extensive medical testimony and accompanying medical records demonstrating a permanent injury. It indicates the probability of expensive future surgery for the man, the court considered that the jury's award of zero for future medical expenses is contrary to the manifest weight of the evidence and is grossly inadequate.

As a result, the court decided to affirm in part, reverse in part, and remand for a new trial on the issue of future medical expenses and on future damages, if any, relating to the need for future surgery.

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December 22, 2012

A man suffered serious as the result of an automobile accident

A Bronx man suffered serious as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury. As a result, the attending surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Manhattan Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

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

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

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

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

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

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

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

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

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

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

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

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit "per claim" and not the aggregate limit applies in this case.

Continue reading "A man suffered serious as the result of an automobile accident" »

December 15, 2012

This is an action to recover damages for serious personal injuries

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Suffolk Personal Injury Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a "serious injury" as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants' motion, and defendants have filed a reply.

A Lawyer said that, in support of this motion defendants submit, the pleadings; the plaintiff's verified bill of particulars; plaintiff's Hospital emergency department records, including x-ray reports of plaintiff's cervical and thoracic spine; the affirmed report of defendant's examining neurologist,; the affirmed report of defendant's examining radiologist,; the affirmed report of defendant's examining orthopedist,; plaintiff's employment verification records dated March 1, 2006; and plaintiff's deposition testimony.

A Long Island doctor said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Plaintiff's Hospital emergency department records for treatment rendered on the day of the accident show that he complained of pain in his neck and upper back. X-rays of plaintiff's cervical and thoracic spine performed at the hospital that day show no signs of fracture, dislocation, significant subluxation, or soft tissue abnormalities. The hospital radiologist opined that x-rays of plaintiffs thoracic spine taken that day showed mild degenerative changes and minimal biconcave scoliosis of the lower-thoracic-upper lumbar spine. Based on these findings, the attending physician diagnosed plaintiff with neck/back pain, but also found that there were no injuries to his head, shoulder, arm or leg. In his report dated August 30, 2006, the neurologist doctor states that he performed an independent neurological examination of plaintiff, and his findings include a motor examination that was "5/5" in all extremities with normal tone; DTR's that were "2 +" and symmetrical; an intact sensory examination; and a normal gait. The doctor opined that plaintiff had sustained sprains of the cervical and thoracic spine injury, but that there were no objective findings to indicate a neurological disability. He also concluded that plaintiff had a pre-existing history of a degenerative condition of the spine. In his report dated October 23, 2006, the orthopedic doctor states that he performed an independent orthopedic examination of plaintiff on that date, and his findings include no muscle atrophy; a negative straight leg raising test; and motor strength that was "5/5." His testing also showed a normal range of motion of the cervical spine, thoracic spine, shoulders, elbows, wrists and hands as well as no tenderness, heat, swelling, erythema or effusion of the upper or lower extremities. Additionally, he noted that plaintiff’s medical history included a prior neck and back injury. He opined that plaintiff had sustained sprains on the cervical and lumbar spine which exacerbated pre-existing injuries.

A Lawyer said that, plaintiff Employment Verification records show that he was employed continuously with the from April 20, 1998 until the date of the verification, March 1, 2006. These records also show that plaintiff was paid in full from an LIRR sick bank from March 11, 2005 through to March 15, 2005, and from March 21, 2005 through to March 31, 2005, and that he worked on March 16 and April 1, 2005. Plaintiff testified that he was employed on a full-time basis as a plumber at the time of the accident. His duties included maintaining the plumbing systems at different stations and outlying buildings. He went to work the Friday after the accident, but he was sent home after a few hours. In total, he missed approximately three weeks of work as a result of his personal injuries. Upon his return, he performed the same duties as before, except that he was unable to lift heavy equipment or materials. He also has difficulty gardening and engaging in various sporting activities such as waterskiing. In addition, he restricts himself to a 40-hour week and has turned down available overtime since the accident. Plaintiff further testified that he was injured in a prior motor vehicle accident about 20 to 25 years ago, at which time he received some chiropractic treatment to his back.
The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

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."
The Court said that, in order to recover under the "permanent loss of use" category, plaintiff 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 a "significant limitation of use of a body function or system" categories, either a specific percentage of the loss of range of motion must be ascribed or there must be a sufficient description of the "qualitative nature" of plaintiff's limitations, with an objective basis, correlating plaintiff's limitations to the normal function, purpose and use of the body part. A minor, mild or slight limitation of use is considered insignificant within the meaning of the statute.

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". Once defendant has met the burden, plaintiff must then, by competent proof, establish a prima facie case that such serious injury exists. Such proof, in order to be in a competent or admissible form, shall consist of affidavits or affirmations. The proof must be viewed in a light most favorable to the nonmoving party, here, the plaintiff.

By their submissions, the Court held that the defendants made a prima facie showing that plaintiff did not sustain a serious injury. Defendants' examining orthopedist found, upon a recent examination, that plaintiff had a normal range of motion of the upper extremities with no atrophy. Similarly, defendants' examining neurologist, round, upon a recent examination, that plaintiff had normal range of motion of the cervical and lumbar spine, with no paravertebral tenderness or spasm. Furthermore, defendants' examining radiologist opined, based upon his review of plaintiff's MRI studies, that plaintiff had a multilevel preexisting degenerative condition of the cervical spine, but that there was no evidence of any causally related injuries. Defendants remaining evidence, including plaintiff's deposition testimony, also supports a finding that he did not sustain a serious injury. As defendants have met his burden as to all categories of serious injury alleged by plaintiff, the Court turns to plaintiff's proffer.

In opposition to this motion, plaintiff submits, among other things, the unaffirmed report of plaintiff's treating radiologist; and the affirmed report of plaintiffs treating osteopath. Initially, the unsworn report of the doctor that was discussed in detail by defendant's examining orthopedist has been considered as it is admissible. In his report, the doctor states that he performed MRI studies of plaintiff’s cervical spine, and his findings include straightening of cervical lordosis; diffuse disc dehydration; and posterior disc bulges. While he observed a ventral cord abutment at C-4/5 through C-6/7, he also noted that there were no significant protrusions into the neural canal, recesses or foramina. He opined that these studies showed no focal prevertebral or posterior paraspinal abnormal masses.

The Court held that, plaintiff has provided insufficient medical proof to raise an issue of fact that he sustained a serious injury under the no-fault. Initially, it is noted that plaintiff failed to submit any medical proof addressing his prior neck/back injuries as well as his condition relative to thereto. In this regard, the doctor failed to indicate awareness that plaintiff had previously injured his neck/back, therefore, any conclusion on his part that plaintiff's claimed injuries were causally related to the subject incident was mere speculation. The doctor also failed to adequately address the preexisting degenerative condition of plaintiff’s cervical spine as diagnosed by his own treating radiologist only two months after the accident, as he did not provide a sufficient foundation or objective medical basis supporting the conclusion which he reached, namely, that the alleged conditions were causally related to or exacerbated by the accident. Further, while the doctor records plaintiffs complaints of pain, he has failed to present medical proof that was contemporaneous with the accident showing any initial range of motion restrictions for the affected body parts. Additionally, the report of the doctor tends to show that plaintiffs injuries, which consisted of a cervical and thoracic sprains/strains and myofascial derangements, were mild, minor or slight. In any event, the doctor has not adequately explained the approximate 14-month gap in treatment between the conclusion of plaintiffs last exam on March 30, 2006 and his most recent examination of plaintiff in May 3, 2007, shortly after the filing of defendants' motion. Thus, plaintiff’s unexplained gap in medical treatment was in essence, a cessation of treatment that is not addressed by competent proof. Additionally, the proof submitted by the plaintiff is insufficient to raise a triable issue of fact.

Moreover, since there is no evidence in the record demonstrating that plaintiff's alleged economic loss exceeded the statutory amount of basic economic loss, his claim in this regard must be dismissed. Accordingly, the Court held that this motion for summary judgment is granted and plaintiff's cross motion is denied as moot.

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December 11, 2012

As described in the Appellate Court’s prior opinion,

As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Staten Island Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

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

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

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

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

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

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

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

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.

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November 27, 2012

This involves a case where the court denied the petition

This involves a case where the court denied the petition stating that petitioner was not eligible for an RSSL Sec. 607-b pension when she applied for pension for benefits.

Petitioner began working as an EmergencyMedical Technician (EMT) with the FDNY in 1992. She is a Tier 4 Member of NYCERS pension fund. In 1995, petitioner was involved in a line of duty ambulance accident, sustaining spinal injuries. As a result, petitioner was out of work on paid sick leave for approximately 18 months. When she returned to work, it was determined that she could no longer work on an ambulance because of her injuries. She was assigned to work as a dispatcher. Over time, her condition worsened and she developed severe pain and locking of her hands. Petitioner, on May 10, 2006, was diagnosed with bilateral carpal tunnel syndrome, disc herniations at C5-6 and L5-S1, left radiculopathy, tendinitis, fluid in the distal ulnar joint and bi-lateral ulnar neuropathy. Accordingly, on that day, petitioner stopped working for medical reasons and remained on an unpaid medical leave of absence. Then, on August 10, 2006 and September 28, 2006, petitioner underwent carpal tunnel release surgeries.

FDNY, by letter dated July 30, 2008, advised petitioner CARTER that because she had been absent and unable to perform her job since April 2, 2007, her employment was subject to be terminated on August 11, 2008.

Petitioner, in support of the instant petition, contends that her medical condition and history, as discussed above, establish that she was disabled as the result of a line of duty injury. Respondents, in opposition, argue that petitioner is not entitled to receive an RSSL § 607-b pension, since an applicant must still be employed in an eligible title when applying pursuant to RSSL § 607-b (a). Thus, since petitioner's employment had been terminated as of August 11, 2008 and her application was not filed before that date, she was ineligible to receive RSSL § 607-b benefits.

RSSL § 607-b (a), which provides for a line of duty disability retirement pension, states:

Any member of the New York city employees' retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician ... who ... becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties shall be paid a performance of duty disability retirement allowance equal to three-quarters of final average salary.

The Court is compelled to conclude that because RSSL § 607-b (a) does not reference or incorporate the language of RSSL § 605(b)(2), petitioner in The Bronx is not entitled to the extended time to file as is provided in the latter provision. Accordingly, RSSL § 607-b (a) must be interpreted as written, applying only to "[a]ny member of the New York city employees' retirement system who is employed by the city of New York or by the New York city health and hospital corporation in the position of emergency medical technician or advanced emergency medical technician [ emphasis added ]."

Thus, it follows that the Long Island Court has no authority to afford petitioner the relief that she seeks. In so holding, it is noted that any request for relief on the ground that the Legislature intended to provide better protection for EMTs who are injured in the line of duty would be better addressed by the Legislature. ( See Matter of Lidakis v. NYCERS, 27 Misc.3d 1150, 1157 [2010], which discusses the Legislature's response to the Court of Appeals' Roberts v. Murphy decision, with the amendment of RSSL § 607-b [L.2004, c. 725, § 1, eff. Nov. 24, 2004], to specifically provide that an EMT NYCERS' member who makes an application for § 607-b retirement shall be entitled to invoke the medical review procedure provided for in RSSL § 605[e] ). This is also supported by the above quoted provisions of the SPD Booklet and by the retirement applications, as well as the general principle of law that provides th.at the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.

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November 22, 2012

On March 16, 2003, two cars were involved in a head-on collision

On March 16, 2003, two cars were involved in a head-on collision in an expressway in Brooklyn, New York. Both the drivers of the two cars claimed damages for serious spinal injuries they allegedly sustained. Both claim that they lost the function of their lumbar or cervical spine. Both claimed bulging discs at the cervical spine, herniated discs at the lumbar spine, sprain and nerve damage. The drivers sued each other as well as their insurers for damages.

Both submitted magnetic resonance imaging scans which their medical experts used as basis to find that there were degenerative changes in the cervical and lumbar spine which show herniation (swelling).

However, the medical reports issued by the examining neurologist at the time of the accident only found the two drivers to be suffering from cervical and thoracic spinal sprain and right shoulder sprain. In the weeks that followed the accident, the same attending neurologist made follow-up reports of the development of the injuries sustained by both the drivers and reported that the spinal sprains have resolved themselves. Even the sprain in the right shoulder and right arm were also resolved. This is evidence, according to the insurers, that neither driver sustained serious injury such that they can be compensated under the Insurance Law. There is no evidence that links their injuries as caused by accident.

For their part, the drivers both answered the contention of their respective insurers that the injuries sustained by them were not serious injuries. They both claimed that at the time of the accident, their injuries were “serious” enough to cause them pain and to cause them to refrain from their normal activities. They could not go to work and had to rest in bed. They both claim that is only thanks to rigorous physical therapy. They produced authenticated medical records from the neurologists and radiologists they consulted who all opined that the bulging and swollen discs of their cervical and lumbar spine were all directly caused by the accident.
The insurers filed motions for summary judgment asking that the complaints against them be dropped. They both claim that while both the drivers sustained injuries as a result of the accident, their injuries may not be serious injuries as defined by the Insurance Law such that the insurers cannot be made liable to pay therefor.

The only question before the trial court was whether or not the summary judgment should be granted and the case against them be dismissed. The trial court granted the summary judgment. Both drivers then appealed.

Upon appeal, the only question before the Court is whether or not the order granting the motion for summary judgment was proper.

The Court held that the insurers gave acceptable preliminary proof that the two drivers did not sustain a serious injury as it is defined under the Insurance Law. The drivers have succeeded in proving that they both suffered from bulging or swollen spinal discs. However, swollen spinal discs by themselves cannot be considered as acceptable evidence of a serious injury.
Both the drivers have to submit proof that the swollen spinal discs constitute serious injury that would disable them from doing their usual work and daily activities. The Court held that when they submitted scans and reports of their own physicians, the two drivers have raised a material issue of fact that has to be tried. That is to say, both the drives were able to submit evidence that raised an issue of fact which a jury alone can determine.

Thus, the Court remanded the case for further proceedings to determine the material issue of fact raised by the two drivers.

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November 13, 2012

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus

This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver's vehicle. By decision and order dated September 16, 2008, the court granted defendant owner's motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)

The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.

Defendants essentially argue that plaintiff's alleged spinal injuries are minor and not causally connected to the accident. In support of their motion for summary judgment, defendants submit the affirmed reports of a neurologist and an orthopedic surgeon. (Martorella Affirm, dated 3/18/11, Exs G, H.) Defendants also maintain that plaintiff's alleged cervical and lumbar spinal injuries were pre-existing injuries, based on plaintiff's deposition testimony and medical records.

The Manhattan neurologist examined plaintiff on August 25, 2008. According to her report, the examination covered areas such as "mental status," "cranial nerves," "motor examination," "reflexes," "sensory," "gait and coordination," and "cerebellar examination." The neurologist also recorded the ranges of motion, expressed in degrees, and corresponding normal values, at plaintiff's neck, and found full range of motion. The neurologist concluded that "exacerbation of preexisting spinal injury, resolved" and that "from a neurologic standpoint, there is no need for further treatment." (Martorella Affirm, dated 3/18/11, Ex G.)

The Westchester orthopedic surgeon also examined plaintiff on August 25, 2008. The orthopedic surgeon recorded the ranges of motion, expressed in degrees, and corresponding normal values, in plaintiff's cervical spine, right shoulder, lumbosacral spine, and right hip. The orthopedic surgeon found that plaintiff had normal ranges of motion in his right shoulder, lumbosacral spine, and right hip. He noted "slightly decreased range of motion of the cervical spine on flexion to 30 degrees (45 degrees normal), extension to 30 degrees (45 degrees normal), lateral bend to 35 degrees (45 degrees normal), right and left rotation to 50 degrees (70 degrees normal)." (Martorella Affirm, dated 3/18/11, Ex H.). The orthopedic surgeon stated, "In my opinion, I find the claimant has no disability." (Id.)


According to the court, the defendants have not met their prima facie burden of summary judgment, based on the affirmed reports of the neurologist and orthopedic surgeon, who both did not state the objective methods used to measure plaintiff's ranges of motion. "The defendant cannot satisfy that burden if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion." ["Defendants' failure to indicate the objective tests used to determine the range of motion in plaintiff's cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal"].)
As defendants point out, the neurologist and orthopedic surgeon both noted under "Past Medical History," that plaintiff was attacked/assaulted by a guard, sustaining injuries to his neck and back. However, neither the neurologist and orthopedic surgeon conclude that plaintiff's alleged injuries were pre-existing in nature. Therefore, defendant’s contention that plaintiff's injuries are preexisting is unsubstantiated.

Because defendants do not demonstrate, as a matter of law, that none of plaintiff's injuries meet the No Fault threshold, "it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment." (Linton v Nawaz, 14 NY3d at 821.)

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November 9, 2012

According to the court, a defendant seeking summary judgment

This involves a motion where the court denied defendant’s prayer for summary judgment to dismiss the claim of plaintiff.

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

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

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

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

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

The motion for summary judgment, therefore, is denied, as defendant failed to establish prima facie that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.

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October 28, 2012

The ability to prove that an injury that has been sustained in an automobile accident

The ability to prove that an injury that has been sustained in an automobile accident is serious under the essential elements of the laws of New York can be a daunting experience. The law is clear on what is considered a serious personal injury. In order for a person to recover damages associated with an accidental injury, the person must be able to present medical evidence that demonstrates that the person has a loss of use of a limb, a serious spinal injury, or a serious brain injury. The mere contention that an injury is serious and painful does not constitute a serious injury under the law. There must be some corroborating medical evidence of the injury. It is not even sufficient to bring in a doctor who is willing to testify that the person has experienced a serious injury that is life changing. That doctor must be able to show that he performed or administrated accepted medical tests that demonstrate that the injury is severe enough to be life altering.

That means that the injury that is sustained must be so severe that the person injured is not able to do the things in life that they did for enjoyment or work before the accident. The problem is that many doctors do not agree on diagnoses. Anyone who has gone to numerous doctors and had each one give them a different diagnoses understands this problem. It is frustrating when it is not something that will be presented in court. It is unnerving when it is. That is a major problem for anyone who has suffered a life changing accident only to have to find a doctor who is willing to interpret the test results to a court in verification of what the patient already knows to be true. One case of this nature was commenced on December 16, 2008.

That was the date that an injured man filed his personal injury lawsuit in New York. He was injured in a motor vehicle accident on January 9, 2008. His car was stopped at a traffic light when another car struck it with enough force to knock it off of the roadway and into a fire hydrant. The man maintained that he sustained serious spinal injury, and injury to his right knee that has resulted in an altered gait and a limp. He also maintained that he received a head injury that has left him with headaches, dizziness and post-concussion syndrome. He presented numerous medical records, x-rays and MRI reports to support his allegations.

The Brooklyn insurance company for the man who hit him requested that he be examined by a doctor of their choosing. That doctor stated that there was nothing wrong with him. That doctor stated that he did not have an altered gait and that his range of motion was normal. The insurance company contends that the spinal complaints that the man has are not related to the automobile accident at all, but rather to an incident that happened in 2001. In 2001, the man was shot in the back. As a result of that incident, the man still has a bullet in his back and that bullet is located in the left side of his colon where it presses on the nerves that control his left leg. He stated that the second bullet that hit him was removed by the hospital on the date that he was shot. The CT scan presented as evidence, however, showed that there was a bullet lodged in the region of his L5-S1 region of his back that has caused the machine to not be able to evaluate the underlying injury. The doctors stated that impingement cannot be excluded. Based on the evidence presented and the fact that it appears that the man still has a bullet wedged into his back, the request by the insurance company for summary judgment releasing them from liability is granted.

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October 26, 2012

In this case, the driver of the other car filed a motion for summary judgment

On July 23, 2007, a man was sitting at the traffic control light located at Greenwich Street and Jerusalem Avenue in Nassau County, New York when another vehicle hit his. The other vehicle made contact with his vehicle in a same direction side swipe manner. As the vehicle was driving past his in the same direction, it swerved and the offending vehicle swept up the passenger side of the man’s car from the rear passenger side area to the front. The man filed a personal injury and 90/180 case against the driver of the other vehicle.

In order for a person to claim a serious person injury under the auspices of the New York Insurance Law, they must be able to prove that they suffered an injury that was invasive enough to alter their normal everyday lifestyle. In order to make that statement, the injured person must be able to demonstrate through medical records that they have sustained either a permanent loss of use, or partial percentage loss of use of a member of their body.

Alternatively, they can show a brain injury or spinal injury that is severe enough to have altered their lives and receives treatment. They may also file a 90/180 claim that contends that although they recovered from their injuries, they were incapacitated by them for 90 out of the 180 days that immediately followed the accident. It is important that the injured person is able to demonstrate that they have been continually under the care of a doctor from the time of the accident until the time that they filed their suit. The court has been known to dismiss a gap in treatment for legitimate reasons if it can be properly documented.

In this case, the driver of the other car filed a motion for summary judgment asking the court to dismiss the case. The other driver contends that the man did not demonstrate proper documentation showing that he had sustained a serious spinal injury under the guidelines of the New York Insurance Law § 5102(d). While he submitted several test results, they were missing original signatures and failed to have sworn doctor testimony upholding them. Further, the driver of the other car demonstrated that the man claims to have been disabled by the accident, however, there is evidence that he took a job at UPS four months following the accident date. Since that time, the man has not been seen by a medical professional for any of his injuries. Because, the other driver contends that the man has not proven his case under the statute as either permanent, or as a 90/180, the man asks the court to free him from liability and dismiss this case as frivolous.

The court reviewed the case and examined all records associated with it. The court is reluctant to grant summary judgment dismissing a case because New York Law considers that a person has a right to argue their case in court. When there is even the slightest chance that there may be arguable points of fact, then the case will not issue a summary judgment and will forward the case to court for trial. In this case, although the man had provided doctor’s letters, they were not sworn documents. The primary test result that he was depending on to make his case, was not signed or properly admitted. Further, the fact that the man had obtained employment within four months of suffering his injury and stopped all medical treatment for a period of two years before filing this claim is suspect. The man provided no explanation for his failure to obtain treatment for two years following the accident. With these facts in mind, the court approved the other driver’s request for summary judgment and dismissed the case against him.

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October 23, 2012

When a person decides that they want to file a personal injury lawsuit in New York

When a person decides that they want to file a personal injury lawsuit in New York, they are required to submit proof to the courts that their injury is a severe injury as defined by the requirements of Insurance Law § 5102. That means that they must also show that they meet the requirements of Insurance Law § 5104 as it regards non-economic loss. When the elements of the injury are not in compliance with these codes, then the person will not be allowed to file the suit. A lawsuit in New York, alleging a personal injury may not be filed if the injury is merely an inconvenience. In order for an injury to be determined severe it must render that person unable to work for a substantial amount of time and/or prevent that person from continuing to work in their chosen career field.

The injuries that are defined as serious injuries are spelled out in the law. They are defined as injuries that deprive a person of the use of a limb, or actually results in the amputation of a limb. Some spinal injuries and brain injuries may also qualify as severe. In order for the spine injuryor brain injury to be categorized as serious, it must be so pervasive of an injury as to render the person unable to function on a daily basis as they were accustomed to performing. The ability to continue participating in daily activities that they were able to participate in prior to the injury would mean that the injury will not be considered a severe injury under the law.

In October of 2009, a woman was involved in a traffic accident at the intersection of Bellmore Avenue and Sunrise Highway. The accident occurred in Nassau County in the State of New York. At the time of the accident, the police determined that the vehicle that hit hers was at fault in the accident. At the accident scene, the woman left her car, walked around the scene, and was able to drive her vehicle to work after the accident. She later went home and stayed out of work for one day. She started to see a chiropractor following the accident because she claimed that she was having headaches and pain from personal injury that she incurred as a result of the accident. She was x-rayed by the chiropractor and went to see him two to three times a week for several months into the winter of 2010.

In the winter of 2010, she started physical therapy. She attended physical therapy sessions two to three times a week until she stopped in the summer of 2010. At this point, she saw an orthopedic doctor several times in an attempt to get relief from her symptoms. Following 2010, she stopped receiving treatment for her injuries and continued on with her daily routines. In accordance with the laws of New York, although her x-ray report and follow-up doctor reports indicated that she had sustained a spinal injury that involved compression of her spinal column and several dislocations of vertebrae, she testified in court that she was only in bed from the injury for one day. She also testified that overall, she has only missed less than a week of work obtaining treatment for her injury. Because the statute requires that the injury be severe and pervasive enough to prevent the patient from performing daily activities that she did before the injury, the woman has effectively ended her own lawsuit by stating that she was only inconvenienced one week because of her spinal injuries. The court in review of this testimony determined that the woman did not suffer a severe injury as defined by the law. Her case was dismissed.

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October 15, 2012

When a person is hit by a car, the injuries that they incur are likely to be serious

When a person is hit by a car, the spinal injuries that they incur are likely to be serious in nature. However, pursuant to New York State Insurance Law § 5102, in order for an injury to be considered serious, it must be so pervasive that it required that person to restrict their lifestyle for 90 of the first 180 days following the injury. That means that the burden to show that they have incurred a serious bodily injury falls to the complainant. The only way to demonstrate a serious bodily injury is to have a board certified doctor perform tests that show definite results. These results must demonstrate that the person has incurred an injury that is both severe and invasive enough to limit the use of a limb. Alternately, in the case of brain or spine injuries, the complainant must be able to show that the injury has rendered them unable to perform tasks that they considered day to day activities prior to the accident.

This became the goal of a man who worked in New York State as a security guard for a school. One day while he was directing traffic for parents who were dropping off and picking up their children, he observed a woman driving a car in the bus lane. When she pulled in, a bus had pulled behind her preventing her from backing up. The Bronx security guard approached her vehicle to help guide her out of the driveway. As he approached, she suddenly put the car in forward gear and struck him. He contends that the force of the impact propelled him up onto the hood of her car and that he sustained serious bodily injury as a result of the accident. This accident occurred on March 12, 2012 at around nine in the morning.

As it turned out, the woman who was driving the car, had borrowed it from her long term boyfriend. The Manhattan boyfriend had rented the car from ELRAC. ELRAC is in the business of leasing automobiles. During the course of the investigation into this case, the security guard determined that the boyfriend had a restricted license at the time that he had rented the car from ELRAC. He contends that if ELRAC had not rented the car to a person that had demonstrated that they were likely to operate the vehicle in a manner that would cause harm to another, that he would not have been injured by the car. He contends that ELRAC had a responsibility to ensure that the persons who rented cars from them would operate those vehicles in a safe manner. The fact that the man’s license was restricted should have been an indicator to them that the man was a less safe driver.

The company, ELRAC stated that while they do have an internal policy that should have prevented this man from being able to lease one of their vehicles, it is a moot point because that man was not even driving the vehicle at the time of the collision. Further, they contend that the security guard did not incur a serious injury under the definition of the Insurance Law of New York. That definition states that for a person to have incurred a serious injury under the law, they must have been deprived of the use of a limb, suffered a spinal injury, or suffered a brain injury. These injuries must be so severe that they limit that person from conducting daily activities that they had done before the accident. In this case, ELRAC also contends that the injuries are treatable and so are not permanent by nature of the law. The court determined that there was not enough evidence presented to grant a summary judgment and that the security guard had demonstrated that there were facts in question that should be determined by a trial.

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October 7, 2012

On July 9, 2009 around noon, a traffic accident took place at the intersection

On July 9, 2009 around noon, a traffic accident took place at the intersection of West Sunrise Highway and North Bayview Avenue in Freeport, New York in the County of Nassau.

Complicating this accident was the fact that it involved three vehicles actively and one vehicle in a more passive aspect. A 2005 Nissan which was involved in the accident was owned and operated by the person who was injured and who filed a personal injury lawsuit as a result of the accident. The injured party contends that a BMW which was owned and operated by the defendant in the personal injury suit did not stop at the traffic signal located at that location. Rather, they went through the red light and struck a U-Haul rental truck that was in the intersection. The U-Haul truck was pushed by the force of the impact into the complainants Nissan. The Nissan was then shoved backward into a fourth vehicle. As a result of the accident, the complainant who was the driver of the Nissan claims that he suffered from a serious bodily injury as defined in the New York State Insurance Law guidelines.

In order for an injury to be categorized as serious under the New York State Insurance Law guidelines, the person who is claiming the injury must be able to prove that they suffered from an injury that caused them to lose the use of a part of their body, a serious spinal injury, or a brain injury that was debilitating. Alternatively, they can show that as a result of the accident, they were unable to perform their usual daily activities or go to work for at least 90 days out of the 180 days that immediately followed the accident. That type of claim is referred to as a 90/180 claim. In order for a claimant to be able to prove that they suffered from a serious injury, they must have corroborating evidence in the form of court certified documentation from a licensed medical professional in the state of New York.

That Queens medical professional must be able to show that he or she used quantitative medical tests to demonstrate that the injured person has lost a percentage of their use of a body part, or that they qualified for the 90/180 claim as prescribed by the Insurance law. These laws were put in place to prevent people who have minor claims of injury from overloading the court system with minor complaints. The doctors who are involved in the treatment of the patient, must be able to demonstrate through sworn testimony why they determined that the person received a serious injury. An opinion of a doctor that is not backed up with legitimate diagnostic test results will not win a personal injury monetary award. Further, the doctor is required to articulate the percentage of injury. That means that the doctor has to state to the court under oath or enter a document to the court that has been sworn as truthful about what the normal range is for an uninjured person. The doctor or chiropractor must be able to identify a measurable difference in the range of motion of the injured person as compared to the range of motion of an uninjured person. If they cannot determine that there is a difference, or that there was a difference under the 90/180 rule, then the person will not be able to recover damages.

In this case, the doctors presented MRI reports and testified clearly about the injury that the plaintiff sustained in the accident. Because of the doctor’s testimony, the Staten Island complainant passed the test of incurring a serious injury in the course of the accident. The motion that was pressed by the defendant driver in this case to dismiss the entire case on the grounds that the injury was not serious, was denied.

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October 4, 2012

On August 8, 2008, a New York woman was a passenger in a vehicle

On August 8, 2008, a Brooklyn woman was a passenger in a vehicle that was involved in a traffic accident. The accident occurred in the intersection of Middle Neck Road and Northern Boulevard. This intersection is located in Nassau County in New York State. At the time of the accident, the woman was a passenger in a 2007 Lexus that was being driven by her male companion. The vehicle was struck in the rear end by another vehicle. The woman contends that she sustained a serious injury as defined by the Insurance Laws of New York State in the course of the traffic accident. She subsequently filed a personal injury lawsuit to recover monetary damages as a result of the injuries that she sustained in the accident. The woman contends that her right knee was injured in the accident and that she was required to have arthroscopic surgery on the knee. She also stated that she received a sprain of her neck and lower back. She contends that these injuries prevented her from conducting her usual activities for at least 90 of the 180 days immediately following the accident. She also contends that the knee injury qualifies as a serious injury under the law because she now has limited flexion of the knee that is not within the normal range.

In order for a person to recover monetary damages as the result of an accident under New York Law, they must be able to demonstrate that they obtained an injury of sufficient severity that they were unable to perform their normal day to day activities for at least 90 days of the 180 days that immediately followed the accident. They can also demonstrate that the injury is a permanent disability as defined by them having a limited use of an appendage of the body. Other qualifying injuries fall under spinal injury or brain injury, either one of which may qualify a person to have received a serious injury as defined by the Insurance Laws of the state.

However, these injuries must be quantitative. That means that a medical professional doctor, or chiropractor, must swear under oath to the condition that the woman sustained. She must present these sworn statements to the court. The woman must also show that the doctor performed quantitative non-subjective tests of the body part that she maintains was injured. These tests must demonstrate an actual decrease of use that can be measured as compared to the normal measurements of an uninjured person.

It is especially important when a person is attempting to recover monetary damages from a personal injury that they clearly define the impact that the injury has had on their daily functioning. If they fail to clearly demonstrate this, they will not succeed in their suit. The doctor’s test results must also be sworn to and certified by the court. The only exception to this practice is if the test results are accepted by both sides of the complaint and relied upon by both as a support for their contentions. However, if one of the parties does not use the particular test as a measure of the injury, then the test results must be certified through the court before they can be used. Many people make the error of not properly presenting the evidence that they intend to use in court. It is this failure that costs them the ability to prove their case. The defendant, as in this case, is going to file a motion that challenges the severity of the injury. In this motion, they will ask the court to dismiss the entire complaint because the injured person has not demonstrated that they sustained a serious injury under the law. In this case, the failure to properly certify the test results cost the woman her lawsuit. It was dismissed.

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October 2, 2012

The above entitled action stems from personal injuries allegedly sustained by plaintiff

The above entitled action stems from personal injuries allegedly sustained by plaintiff as a result of an automobile accident with defendant occurred on May 16, 2008, when plaintiffs' vehicle was exiting Northern State Parkway to Route 110 in Melville, County of Suffolk, State of New York. Plaintiff was operating a 2003 Lincoln Town Car which was owned by his employer Executive Limo. Defendant was the owner and operator of a 2001 Chevrolet. It is alleged that the automobile that was being driven by plaintiff was struck in the rear by the automobile being driven by defendant. Defendant claims that the impact was heavy and caused his glasses to fly off and his body to move back and forth inside the vehicle despite the fact that he was seat belted.

A Suffolk man said that, as a result of the accident plaintiff claims that he sustained the following injuries: Sprain of the anterior cruciate ligament/left knee; Tear in the posterior horn of the medial meniscus of the left knee and may require future surgery; Acromion impingement on the supraspinatous muscle of the left shoulder which may require future surgery; Increased signal in the supraspinatous tendon consistent with tendonopathy/left shoulder; Subligamentous posterior disc herniations at C3-4, C4-5, C5-6 impinging on the anterior aspect of the spinal canal at C3-4 and C4-5 and on the anterior aspect of the spinal cord at C5-6; Subligamentous posterior disc herniations of the lumbosacral spine at L4-5 and L5-S1 impinging on the anterior aspect of the spinal canal, the neural foramina bilaterally and left nerve root at L4-5; Moderate to sever stenosis from L3-L5; Cervical, thoracic and lumbar myofascitis; Lumbar and cervical radiculitis/radiculopathy; Left bicepital tendonitis; Left shoulder derangement; Left knee derangement; Left ankle sprain/strain; Left foot contusion and left plantar fascitis; Cervical sprain/strain; Thoracic sprain/strain; Lumbar sprain/strain; Cervical acceleration/deceleration injury; Myofascitis; Bilateral ulnar motor neuropathy at elbows; Borderline left median motor neuropathy; Right, distal medial sensory neuropathy; Bilateral ulnar sensory neuropathy; Left rotator cuff sprain; Decreased range of motion of the cervical spine; Decreased range of motion of the left shoulder; Myofascitis of the cervical, thoracic and lumbar spine; Left supraspinatus tendinopathy and impingement.

Plaintiff commenced the action with service of a Summons and Verified Complaint. Defendant moves, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting her summary judgment on the ground that plaintiff did not sustain a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d). Plaintiff opposes defendant's motion.

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

The Court in deciding the motion sais 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. 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.

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.

In support of a claim that the plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians in Queens. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's spinal injury such as sworn MRI and CT scan tests. Conversely, even where there is ample proof of a plaintiff's spinal injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.

In case at bar, the Court said that, plaintiff claims that as a consequence of the above described automobile accident with defendant, he has sustained serious spinal injuries as defined in New York State Insurance Law § 5102(d) 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).

As previously stated, to meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. In addition, an expert's qualitative assessment of a plaintiff's condition is also probative, provided: (1) the evaluation has an objective basis and (2) the evaluation compares the plaintiff's limitation to the normal function, purpose and use of the affected body organ, member, function or system. See id.

Finally, to prevail under the "medically determined spine injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature" which would have caused the alleged limitations on the plaintiff's daily activities. A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment.
When moving for dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a serious injury. Within the scope of the movants' burden, a 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 the plaintiff's range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

Defendant submits that, in 2005, plaintiff was involved in a major motor vehicle accident for which he had seen a variety of medical providers and commenced a lawsuit for personal injuries arising out of said accident, with representation by the same attorneys who are representing him in the instant matter. Defendant further submits that in addition to that prior accident in 2005, the Plaintiff was involved in six other prior automobile accidents, for which he commenced a lawsuit each time. He was represented by the same counsel. Defendant adds the spinal injuries claimed herein for the subject accident are set forth in the plaintiff's Bill of Particulars. They include claims for injuries to his left knee, left shoulder, cervical spine, lumbar spine, radiculopathy, and neuropathy. Similarly, in the Bill of Particulars dated July 13, 2006 and Supplemental Bill of Particulars for the Plaintiff's motor vehicle accident and lawsuit arising out of his accident on February 11, 2005, the claims are also for the same injuries abovementioned. Defendant argues that in plaintiff's EBT testimony, he admitted that his automobile's air bag did not inflate, that he did not strike anything in the interior of the automobile and the he did not lose consciousness. Plaintiff also testified that, after the accident, he stood outside his car for approximately a half-hour before the police arrived and, when they did, he declined needing medical attention. Plaintiff then drove to his meeting in Melville and later returned home to Valley Stream. Defendant states that following the accident, plaintiff went for treatment to Dr. Lauren Stimler-Levy at New York Pain Management and Medical Services, P.C. Plaintiff had been a patient at New York Pain Management and Medical Services, P.C. since his accident in 2005. Plaintiff's treatment there continued there until 2007. Defendant argues that the treatment that plaintiff received at New York Pain Management and Medical Services, P.C. following the May 2008 accident was similar to the prior treatment that he received following his 2005 accident although he also had treatment on his left knee after the 2005 accident. Defendant contends that a review of plaintiff's EBT testimony with respect to his 2005 accident and his 2008 accident "reveals that this plaintiff has claimed injuries to the same parts of his body for at least the two accidents in 2005 and the subject accident in 2008, and was involved in numerous other accidents for which he commenced seven different personal injury lawsuits." Defendant argues that plaintiff cannot establish the requisite causation through any legally admissible evidence that his current claims are proximately related solely to the accident of May 16, 2008. Defendant states that it is undisputed that the plaintiff had long-standing complaints with regard to his left shoulder, back, knees and neck. They are related to his prior accidents, as well as his pre-existing degenerative conditions, and his diabetes. Defendant argues that plaintiff's complaints alleged to be related to spine injuries sustained in the May 2008 accident are simply not proximately connected.

Dr. Leon Sultan, a board certified orthopedist, reviewed plaintiff's medical records and conducted a physical examination of plaintiff. Dr. Cohen examined the plaintiff and performed quantified and comparative range of motion tests on plaintiff's cervical spine, left shoulder, thoracolumbar spine, left knee and left ankle/foot. The results of the tests indicated no deviations from normal.

With respect to plaintiff's 90/180 claim, defendant relies on the EBT testimony of plaintiff which indicates that following the subject accident he did not miss any time for work at Executive Limo or his own company, that he had bed rest for only one day, that he continued his walking regimen after the accident-slowly returning to his one mile distance, five days per week, twice a day and that he engaged in his home exercises.

Based upon this evidence, the Court finds that the defendant has established a prima facie case that the plaintiff did not sustain serious injury within the meaning of New York State Insurance Law § 5102(d).

The burden now shifts to the plaintiff to come forward with evidence to overcome defendant's submissions by demonstrating the existence of a triable issue of fact that serious injury was sustained.

As indicated above, plaintiff submitted the affirmation of Lauren Stimler-Levy, M.D. who treated plaintiff. Dr. Stimler-Levy states that plaintiff presented himself to my office in regard to a motor vehicle accident he was involved in on May 16, 2008 wherein he sustained injuries to his lower back, cervical spine and mid back for which he underwent treatment until July of 2005 in the form of TENS unit and massage as well as physical therapy exercises. In regard to that accident, the patient underwent MRIS which revealed disc herniation at L5-S1 and L4-5 as well as disc bulges at L2-3, L3-4 and LI-2. Plaintiff indicated he had stopped treating in July 2005 as his pain and symptomology had abated. Dr. Stimler-Levy examined plaintiff and performed quantified and comparative range of motion tests on plaintiff's cervical spine, left shoulder and left knee. Dr. Stimler-Levy concluded it was my expert opinion that the injuries as diagnosed were causally related to the motor vehicle accident and that said injuries were consistent with the clinical presentation in my office.

Plaintiff also submitted the affidavit of Filippo Ragone, D.C., a chiropractor who examined plaintiff and stated that he was aware of plaintiff's prior motor vehicle accidents and the injuries and treatments that resulted therefrom. Dr. Ragone's initial diagnosis was "cervical acceleration/deceleration injury; mid back pain; low back pain; left shoulder pain and derangement; and myofascitis."

In support of his 90/180 argument, plaintiff submits his own affidavit in which he states “during the first six months after the accident, I was unable to perform the following: food shopping; carrying groceries; exercising; participating in daily morning walks; maintaining my car; washing my car; spending time caring for grandchild; taking grandchild to park to go bike riding; enjoying social gatherings and parties with friends and family during the summertime; long drives to visit family; take care of chores outside; gardening; and dancing and enjoying myself with friends and family. Despite the prior accidents I was involved in, at the time of this accident, I was pain free and leading a full normal active lifestyle including going to work every day as a limo driver.

The Court concludes that the affirmations and affidavits provided by plaintiff raise genuine issues of fact as to spine injuries causally related to the May 17, 2008 accident. Consequently, defendant's motion for summary judgment is denied.

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September 30, 2012

The question about what constitutes a severe injury

The question about what constitutes a severe injury under the Insurance Laws of New York is one that is battled in court on a daily basis. The Insurance Laws of New York detail the guidelines that define a serious injury. Not every injury will qualify as serious under the statutes. In order for an injury to qualify as serious, the person must have lost a limb or the use of that limb. If the person is claiming that they lost partial use of the limb, they will have to provide objective evidence that shows exactly how much of a difference there is between what that person can do and what an uninjured person that person’s age is capable of doing with that limb. There must be an objective measurement of the difference. That measurement must be provided by a medical test that is performed by a medical doctor or chiropractor. If the test is subjective, it relies on the personal opinion of the doctor to interpret it. It will not be sufficient to keep the case from being dismissed. In fact, it can be so difficult to prove a serious injury, that it is routine for a defendant of a personal injury lawsuit to file a motion that the injury sustained by the complainant is not severe and requesting the dismissal of the case.

Anytime that a person is going to court for a personal injury, it is an emotional time. Most people who have sustained a serious injury have seen their lives completely altered overnight from the accident. They know that they were injured severely, and more often than not are offended by the suggestion that their injury is not severe. A court of law in Westchester is no place for sentiment. One of the advantages to having an attorney handle your case for you is that they are not offended by the suggestions or claims of the opposing side. It is critical to prove the injury objectively. Just saying that you are injured or even having a doctor say that you are injured is not sufficient to prove your case in a court of law.

The doctor that is seen will have to perform medical tests that clearly show the extent of the injury. That means that an MRI or CT Scan will not be sufficient on its own. In the case of spinal injuries, there are nerve conductivity tests that must be performed. These tests demonstrate the nerve damage that causes the pain. They are objective and there are numerical figures that are assigned to the amount of damage that is present. The doctor is then able to testify in court about a numerical figure provided by a test that was conducted without personal opinion input. Even then, the doctor’s testimony must be sworn or the report certified in order for the test results to be admissible.

That was the problem that a New York woman ran in to when she filed her personal injury lawsuit following a traffic accident that occurred on August 8, 2008. She was the passenger in a car that was struck in the rear by another car. In the accident, she sustained an injury to her knee as well as a spinal injury. Her knee was injured badly enough for her to have to have surgery to repair it. However, when she had her case prepared for trial, the doctors were not able to certify that their opinions could be supported by objective medical tests. The defending party in the suit filed a motion for summary judgment in contention that she did not make her case that she sustained a serious injury under the code section. The court agreed and her case was dismissed.

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September 23, 2012

This is an action to recover damages for personal injuries

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident in 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. In his bill of particulars, plaintiff alleges that he sustained the following spinal injury and other 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, 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, loss of enjoy of life.

A Nassau Lawyer said that, plaintiff was involved in a prior motor vehicle accident in 2002 whereby he injured his neck, lower back, and shoulders. Defendant claims that the spinal injuries plaintiff complains of in this accident are not causally related to the 2008 motor vehicle accident, but rather are permanent spine injuries resulting from the 2002 accident.
Defendant has presented objective medical testing from 2002 in order to establish the preexisting spine injuries at the time of the 2008 accident. The MRI report dated February 25, 2002 of Dr. Richard J. Rizzuti indicated posterior disc bulge at L3-L4 and at L5-S1 impinging on the spinal canal. The report 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. Dr. Spindler states that "any scores falling in the abnormal range recognize a possible entrapment of the nerves and indicate that a problem exists." More recently, plaintiff's treating 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 2002 accident. The Long Island Defendant claims that the evidence demonstrates that any permanent and consequential spine 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.

As a result of the subject motor vehicle accident, 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, Dr. Michael J. Katz, 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.

Defendants filed a motion for summary judgment on the ground that plaintiff did not sustain serious injuries as defined under Insurance Law.

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

The Court in deciding the motion 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 defendants established their entitlement to judgment as a matter of law by submitting, the affirmed medical report of Dr. Katz who examined the plaintiff in 2009 and found no significant limitations in the ranges of motion with respect to any of his claimed spinal 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 the spine 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 spinal injury, that he sustained a serious 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, and upon medical proof contemporaneous with the subject accident.

Where, as here, plaintiff sustained 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 spine 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 subject accident was the cause of plaintiff’s spinal injuries.

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. Hence, the Court granted defendants motion for summary judgment.

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September 21, 2012

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in

A Nassau lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in traffic waiting for the light to turn green when a Jeep hit her car from behind. The impact of the rear-end collision pushed her Honda Civic one car length away. Her Honda Civic struck the car in front of her.

The impact of the collision sent the lady driver of the Honda Civic in a lurching motion. She hit the steering wheel and was pulled back by gravity so that she hit her neck and back on the head rest. She claims that she twisted her neck and was in pain.

She claims that she sustained spinal injury in her cervical and lumbar spine. She claims to have discs that have been misaligned and resulted in swellings which brought about impingement of the nerves and great pain.

The owner and driver of the Jeep seeks the dismissal of the complaint on the ground that the lady driver did not sustain a serious injury. They produced evidence that the lady driver did not miss any work from the time of the accident. They also produced evidence that the lady driver went out of the country to travel abroad on at least three occasions after the accident until the time of the trial.

The Jeep owner from Suffolk also provided evidence by way of physicians’ reports and MRI and CT Scans of the lady driver immediately after the car accident. The doctors examined the lady driver and performed range of motion tests on her and their findings show that the range of motion of the lady driver’s spine was within normal range.

The doctor who interpreted the MRI findings gave an opinion that the pain and swellings of the discs of the spine of the lady driver were not caused by the accident but these were caused by a degenerative spinal condition that is due to the wear and tear on the spine as a result of aging.

The lady driver opposed the motion for summary judgment filed by the owner of the Jeep. She produced medical findings of doctors who treated her from the time of the accident until the time of the trial. Her medical experts claim that she has sprained her lumbar and cervical spine such that she suffers pain when she sits or stands for a long time. She also claims that she is unable to lift objects and unable to do chores in the house as a result of the constant pain she suffers.

She also answered the allegation of the owner of the Jeep that she did not miss any day of work after the accident. She claims that she could not afford to miss work so she showed up for work although she was heavily medicated. She also claims that her daily activities have been limited as her constant pain renders her unable to do the things around the house that she used to do.

She also presented the diagnosis, findings and opinions of her chiropractor who testified that she suffered sprain in her cervical and lumbar spine which caused her spine to be misaligned. The misalignment impinged on nerves which cause her considerable pain.

The only question before the Court is whether or not the motion for summary judgment filed by the owner of the Jeep should be granted.

The Court held that the lady driver of the Honda Civic had succeeded in raising material issues of fact that must be resolved by a jury. The plaintiff in her own affidavit and in the affidavit of her attending physicians have raised the issue of fact as to whether or not the spinal injury she suffered were caused by the accident. The motion for summary judgment is denied.

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September 18, 2012

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in

A lady was driving a Honda Civic on September 17, 2007 on the Jericho Turnpike. She was parked in traffic waiting for the light to turn green when a Jeep hit her car from behind. The impact of the rear-end collision pushed her Honda Civic one car length away. Her Honda Civic struck the car in front of her.

The impact of the collision sent the lady driver of the Honda Civic in a lurching motion. She hit the steering wheel and was pulled back by gravity so that she hit her neck and back on the head rest. She claims that she twisted her neck and was in pain.

She claims that she sustained spinal injuryin her cervical and lumbar spine. She claims to have discs that have been misaligned and resulted in swellings which brought about impingement of the nerves and great pain.

The Long island owner and driver of the Jeep seeks the dismissal of the complaint on the ground that the lady driver did not sustain a serious injury. They produced evidence that the lady driver did not miss any work from the time of the accident. They also produced evidence that the lady driver went out of the country to travel abroad on at least three occasions after the accident until the time of the trial.

The Jeep owner also provided evidence by way of physicians’ reports and MRI and CT Scans of the lady driver immediately after the car accident. The doctors examined the lady driver and performed range of motion tests on her and their findings show that the range of motion of the lady driver’s spine was within normal range.

The Manhattan doctor who interpreted the MRI findings gave an opinion that the pain and swellings of the discs of the spine of the lady driver were not caused by the accident but these were caused by a degenerative spinal condition that is due to the wear and tear on the spine as a result of aging.

The lady driver opposed the motion for summary judgment filed by the owner of the Jeep. She produced medical findings of doctors who treated her from the time of the accident until the time of the trial. Her medical experts claim that she has sprained her lumbar and cervical spine such that she suffers pain when she sits or stands for a long time. She also claims that she is unable to lift objects and unable to do chores in the house as a result of the constant pain she suffers.

She also answered the allegation of the owner of the Jeep that she did not miss any day of work after the accident. She claims that she could not afford to miss work so she showed up for work although she was heavily medicated. She also claims that her daily activities have been limited as her constant pain renders her unable to do the things around the house that she used to do.

She also presented the diagnosis, findings and opinions of her chiropractor who testified that she suffered sprain in her cervical and lumbar spine which caused her spine to be misaligned. The misalignment impinged on nerves which cause her considerable pain.

The only question before the Court is whether or not the motion for summary judgment filed by the owner of the Jeep should be granted.

The Court held that the lady driver of the Honda Civic had succeeded in raising material issues of fact that must be resolved by a jury. The plaintiff in her own affidavit and in the affidavit of her attending physicians have raised the issue of fact as to whether or not the spinal injury she suffered were caused by the accident. The motion for summary judgment is denied.

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September 15, 2012

Defendant argued that plaintiff's medical records establish that plaintiff

This involves a case wherein the Court ruled that plaintiff’s injuries did not suffer a “serious injury” in the accident as defined by New York State Insurance Law which led for an order granting defendant summary judgment.

Plaintiff commenced the action against defendant allegedly for personal injuries sustained by plaintiff as a result of a car accident with defendant which occurred on November 20, 2009, at approximately 7:51 p.m., at or near the intersection of Guinea Woods Road and Jericho Turnpike, Old Westbury, County of Nassau, State of New York. The accident involved a 2008 Chrysler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by defendant. It is plaintiff's contention that the car accident occurred when defendant's vehicle struck plaintiff's vehicle in the aforementioned intersection when, defendant's vehicle, while speeding, made a left turn in the intersection and failed to yield the right of way.

Defendant argued that plaintiff's medical records establish that plaintiff had a preexisting medical history of lower back pain that pre-dates and is unrelated to the subject accident. Defendant submits that, on January 22, 2004, almost six years prior to the subject accident, plaintiff went to a physician with complaints of back pain from the proceeding year and admitted that the condition originated five to six years earlier. Defendant added that the medical records of plaintiff's treating physician, further showed that plaintiff had pre-existing spinal injury, lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject accident.

Based upon this evidence, the Court found that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

The burden now shifted to plaintiff to come forward with evidence to overcome defendant's submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. To support his burden, plaintiff submitted the Affirmation of his treating physician, plaintiff's EBT testimony and the physician's medical treatment records for plaintiff dated October 13, 2009 thought January 19,2010.

However, the Court noted that physician's Affirmation (Plaintiff's Affirmation in Opposition Exhibit A) fails to set forth any objective findings contemporaneous with the subject accident, as well as fails to set forth any quantified range of motion findings based on a recent examination of plaintiff. The physician provided no objective basis for any of his conclusions concerning his initial examination, nor for his most recent examination of plaintiff. Furthermore, in his Affirmation, the physician did not set forth the objective tests upon which he predicated his findings and conclusions and accordingly his Affirmation is insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d).

The Court said that absent any objective contemporaneous findings, plaintiff cannot establish the duration or cause of any limitations found by his treating physician during his recent examination of plaintiff.

With respect to plaintiff's 90/180 claim, nowhere does plaintiff claim that, as a result of his alleged spinal injuries, he was "medically" impaired from performing any of his daily activities or that he was curtailed "to a great extent rather than some slight curtailment.". In light of these facts, the Suffolk Court determined that plaintiff's injuries do not satisfy 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 of Insurance Law.

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September 13, 2012

Plaintiff alleged that a car accident occurred on September 15, 2002

This involves a case where the court granted defendant’s motion for summary judgment dismissing the plaintiff’s complaint for failure to prove that the latter suffered serious injury threshold requirement of Insurance Law Sec. 5102 (d).

Plaintiff from The Bronx alleged that a car accident occurred on September 15, 2002 at approximately 5:15 p.m. at the intersection of Carman Avenue and Choir Lane in the Town of Hempstead, New York. Plaintiff claimed that as a result thereof, she suffered serious injuries. At her oral examination before trial, the Plaintiff testified that she had a preexisting spinal injury to her lower back from another car accident in 1988. After being treated for the injuries from that accident, the Plaintiff continued treating with a chiropractor for occasional discomfort to her back, "as needed," rather than having a set schedule of appointments. Following the subject accident, it was suggested by multiple doctors that the Plaintiff undergo surgery and/or physical therapy, but she declined and chose to continue seeing the chiropractor instead. The Plaintiff also declined pain medication immediately following the accident, preferring over the counter medication. But plaintiff admitted she had her first doctor visit for medical expert opinion after 18 months from the accident. Following the accident, Plaintiff testified to having trouble bending over, walking long distances, participating in her children's activities, dancing, hiking and brushing her teeth. Plaintiff claimed that she had some occasional discomfort in her back prior to the subject accident, and that the accident exacerbated that pain into a chronic condition.

The Court in Brooklyn held that Plaintiff’s claims that her injuries satisfy the 90/180 category of Insurance Law § 5102 (d) are unsupported and contradicted by her own testimony wherein she states that she only missed a week and a half of work and was confined to her home or bed for one week. Additionally, the Plaintiff does not provide any evidence that she was "medically" impaired from doing any daily activities as a result of this accident for 90 days within the first 180 days following the subject accident.

Having made a prima facie showing that the injured Plaintiff did not sustain a "serious injury" within the meaning of the statute, the burden shifts to the Plaintiff to come forward with evidence to overcome the Defendant's submissions by demonstrating a triable issue of fact that a "serious injury" was sustained.

The Court held that the ambulance report and emergency room records presented by the plaintiff prove the occurrence of the accident, but do not provide any indication that a serious injury was suffered, and are not relevant for the purpose of determining whether a permanent or significant limitation resulted. Further, even with competent evidence, the unexplained 18 month gap in the Plaintiff's medical attention following the accident is fatal to her claim of serious injury. More specifically, the Plaintiff appeared to receive no treatment following the accident, aside from seeing a chiropractor who she had been seeing before the subject accident.

According to the court, while a cessation of treatment is not dispositive * * * a plaintiff who terminates therapeutic measures following the accident, while claiming "serious injury," must offer some reasonable explanation for having done so.

The Plaintiff provided no explanation as to why she failed to pursue any treatment for her injuries in the year and a half following the accident, nor did her doctors. Therefore, the unsworn medical records of her physicians should be deemed as stale and insufficient to present an issue of fact.

The 18 month gap between the accident and the Plaintiff's first doctor visits renders the medical expert's later opinion on causation speculative and places into question the seriousness of the injuries themselves. While the Court of Appeals recently pronounced in Perl, supra, that a quantitative assessment of a plaintiff s injuries does not have to be made during an initial examination, it did not dispense with the requirement that a plaintiff must submit objective medical findings contemporaneous with the subject accident in order to raise an issue of fact with respect to causation. Additionally, the physician's opinion, in conjunction with the medical evidence as a whole, fails to describe how the Plaintiff's injuries amount to a "serious injury" as defined by Insurance Law § 5102 (d).

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September 11, 2012

This involves a case where the court ruled that plaintiff did not sustain a “serious injury”

This involves a case where the court ruled that plaintiff did not sustain a “serious injury” contemplated under New York State Insurance Law § 5102(d).

A car accident occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood Boulevard, Elmont, Nassau County, New York. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claimed that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claimed that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant's vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced an action by the filing a Verified Complaint for spinal injuries sustained.

Defendant argued that the Suffolk plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.

The court ruled that there is an issue of fact with respect to whether the wind, turning plaintiff's umbrella inside out, caused plaintiff to walk backwards into the defendant's vehicle.

Defendant submitted that the clinical findings and diagnosis reported by the physician who examined plaintiff in the Franklin Hospital Emergency Room after the subject accident establish that plaintiff did not suffer any "serious injury" in the accident. . Upon examination, it was noted that plaintiff's neck was supple and all extremities were normal. Plaintiff also had a normal musculoskeletal and neurological examination. The attending physician in the Emergency Room sent plaintiff for x-rays of her cervical spine, lumbosacral spine and pelvis, which were negative for fracture and dislocation.

Based upon this evidence, the Court found that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

To oppose defendant’s motion, plaintiff submitted unsworn medical reports of treating physician. However, the court ruled that said reports do not constitute competent admissible evidence in opposition to defendant's motion for summary judgment as unsworn reports of the plaintiff's examining doctors are not sufficient to defeat a motion for summary judgment. Further, the defendant argued that in the affirmation of the physician, the physician did not provide explanation for plaintiff’s gap in treatment from March 3, 2009 to September 13, 2011 and that said failure to explain the gap in treatment is fatal to the opposition.

The Court held that where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed spinal injury.

According to the court, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary. Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff's objective medical proof of limitations and permits dismissal of plaintiff's Verified Complaint.

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September 7, 2012

This involves a case where the court ruled that plaintiff failed to demonstrate a prima

This involves a case where the court ruled that the Westchester plaintiff failed to demonstrate a prima facie case that he suffered serious spinal injury within the meaning of Insurance Law Section 5102 (d).

Plaintiff, age 24, alleged that on August 21, 2006, at approximately 11:20 a.m., a motor vehicle owned and operated by him came into contact with a vehicle owned by defendant owner and operated by defendant driver. The car accident occurred on Old Country Road, at its intersection with Frost Street, County of Nassau. Defendants moved for an order dismissing plaintiffs complaint pursuant to CPLR §3212, on grounds that plaintiff failed to sustain a "serious injury" within the meaning of Insurance Law §5102(d).

Insurance Law §5102(d) provides that a "serious injury means a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) 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" (numbered by the Court). The Court's consideration in this action is confined to whether plaintiffs injuries constitute a permanent consequential limitation of use of a body organ or member (7) or significant limitation of use of a body function or system.

Defendant submitted an affirmed report of examination of physician, neurologist, and radiologist for the spine injury allegedly sustained by the plaintiff.

The Court found that the reports of defendants' examining physicians, are sufficiently detailed in the recitation of the various clinical tests performed and measurements taken during the examination, so as to satisfy the Court that an "objective basis" exists for their opinions. Accordingly, the Court finds that defendants have made a prima facie showing, that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d).

With that said, the burden shifts to plaintiff to come forward with some evidence of a "serious injury" sufficient to raise a triable issue of fact.

After the plaintiff submitted its medical evidence, the court found that plaintiff has failed to provide sufficient evidence that plaintiffs alleged injuries are causally related to the accident of August 21, 2006. Although the physician’s report covering plaintiffs cervical spine MRJ indicates "subligamentous posterior disc herniations from C3 through C7 abutting the anterior aspect of the spinal cord[;] Chiari malformation" and his report covering plaintiffs lumbar spine MRJ indicates "posterior disc herniations at L4-5 and at L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally," the Court notes that the existence of a radiologically confirmed disc injury alone will not suffice to defeat summary judgment. The Court further held that plaintiff failed to present evidence to refute the findings of defendant’s examining physician that plaintiff has degenerative changes in his cervical and lumbar spines. This lack of evidence as to causation renders plaintiff’s physician statement, that plaintiffs alleged injuries were proximately caused by the accident highly speculative.

The court noted that there is also insufficient evidence that plaintiffs alleged injuries are permanent §5102(d)((7)). Plaintiff’s physician assertion that plaintiff sustained a permanent consequential limitation is conclusory as she fails to offer any evidence of permanency. "Mere repetition of the word `permanent' in the affidavit of a treating physician is insufficient to establish 'serious injury' and [summary judgment] should be granted for defendant where plaintiffs evidence is limited to conclusory assertions tailored to meet statutory requirements.

The NYC Court reiterated that plaintiffs complaints of subjective pain do not by themselves satisfy the "serious injury" requirement of the no-fault law. Plaintiff has also failed to submit competent medical evidence that the spinal chord injuries that he sustained rendered him unable to perform all of his usual and customary daily activities for ninety days of the first one hundred eighty days following the accident.

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September 5, 2012

A complainant woman commenced an action for her claimed of personal injuries

A complainant woman commenced an action for her claimed of personal injuries resulting from a motor vehicle accident.

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

The woman no longer receives medical treatment for injuries allegedly sustained as a result of the accident, nor does have any future medical appointments scheduled. She testified that she was confined to her bed for one day as a result of the accident and missed less than one week of work. The court notes that the testimony contradicts the woman's bill of particulars.

The Queens woman also claims that as a result of the accident she sustained several spinal injuries. She contends that the injuries was due to the motor vehicle accident and qualify as serious injuries in insurance law. Based on records, serious injury under the insurance law is defined as death, dismemberment, significant disfigurement, fracture, loss of a fetus, permanent loss of use of body organ, function or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system and a medically determined damage of a non-permanent nature that prevents the injured person from performing substantially all of the material acts which constitute his usual and customary daily activity for not less than ninety days during the one hundred and eighty days immediately following the occurrence of the incident.

Based upon the plain reading of the papers submitted, the woman is not claiming that her injuries fall within the first five categories of the serious injury definition which includes death, dismemberment, significant disfigurement, a fracture or loss of a fetus. Therefore, the court restrict its analysis to the remaining four categories of insurance law that includes permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system or a medically determined damage or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the incident.

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

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

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

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

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

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

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

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

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

When the court examined the medical evidence offered by the woman on a threshold motion, the court ensure that the evidence is objective in nature and that the woman’s subjective claims as to pain or limitations of motion are sustained by verified objective medical findings. Consequently, the court denied the motion of the opponent to dismiss the claims against her.
There are times that when emergency occurs, instant reaction from our body comes out and gives as extraordinary strength, swift movement and even unusual tolerance to pain.

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September 3, 2012

The action for damages stems from personal injuries

The action for damages stems from personal injuries allegedly sustained by the plaintiff as a result of an automobile accident occurred at westbound Jericho Turnpike approximately fifty (50) feet east of Wellington Road, in the County of Nassau, Town of North Hempstead, New York. The accident involved two vehicles, a 2004 Honda operated by plaintiff and a 2004 Jeep owned and operated by defendant.

A Nassau Injury Lawyer said that, at the time of the accident, plaintiff's vehicle was traveling westbound on Jericho Turnpike. Defendant's vehicle was also traveling westbound on Jericho Turnpike. Plaintiff contends that her vehicle was stopped in traffic in the left lane on Jericho Turnpike when the defendant's vehicle struck her from behind, pushing her car forward approximately one car length. Plaintiff further contends that, as a result of the heavy impact, her body was caused to move forward and backward in her vehicle and said impact caused her neck and back to strike the headrest and seat. As a result of the collision, plaintiff claims that she sustained the following injuries:

Posterior disc bulges at C3-C4, C-4-C-5 and C6-C7 impinging on the anterior aspect of the spinal canal; Small joint effusion of the left knee; Menisci and ligament/ right knee; Posterior disc herniations at the L5-S1 impinging on the anterior aspect of the spinal canal and abutting the nerve roots bilaterally; Decreased range of motion of the cervical and lumbar spine; Decreased range of motion of the left knee; Left knee pain/sprain; Cervicalgia; Lumbar disc herniation at L5-S1; Pain in the limbs; Neuropathy; Cervical sprainand strain; Lumbar sprain and strain; Lumbargo; Weakness in muscles.

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

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

The Court in resolving the motion said that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. 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. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.

Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury."
In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians. However, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury, stated that a plaintiff's proof of injury must be supported by objective medical evidence, such as sworn MRI and CT scan tests. However, these sworn tests must be paired with the doctor's observations during the physical examination of the plaintiff Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports.

Conversely, even where there is ample proof of a plaintiff's 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 spinal injury.

Plaintiff claims that, as a consequence of the above described automobile accident with defendants he has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:

1) permanent loss of a body organ, member, function or system; (Category 6)
2) a permanent consequential limitation of use of a body organ or member; (Category 7)
3) a significant limitation of use of a body function or system; (Category 8)
4) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.(Category 9).

To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute. A claim raised under the "permanent consequential limitation of use of a body organ or member" or "significant limitation of use of a body function or system" categories can be made by an expert's designation of a numeric percentage of a plaintiff's loss of motion in order to prove the extent or degree of the physical limitation.
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" (Insurance Law § 5102(d)) "which would have caused the alleged limitations on the plaintiff's daily activities." Under this category specifically, a gap or cessation in treatment is irrelevant in determining whether the plaintiff qualifies.

With these guidelines in mind, the Court will now turn to the merits of defendant's motion. In support of his motion, defendant submits the pleadings, plaintiff's Verified Bill of Particulars, the transcript of plaintiff's Examination Before Trial testimony, the affirmed report of Jacquelin Emmanuel, M.D., who performed an independent orthopedic examination of plaintiff and the affirmed reports of A. Robert Tantleff, M.D., who reviewed plaintiff's lumbar spine MRI and plaintiff's cervical spine MRI.

Based upon this evidence, the Court finds that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).

Dr. Jacquelin Emmanuel, a board certified orthopedist, reviewed plaintiff's medical records and conducted an examination of plaintiff's cervical spine, thoracic spine, lumbar spine, left shoulder, right shoulder, left knee and right knee. The results of the tests indicated no deviations from normal. Dr. A. Robert Tantleff, a board certified radiologist, conducted an independent film review of the MRI of plaintiff's lumbar spine MRI and cervical spine MRI. With respect to his review of the lumbar spine MRI, Dr. Tantleff’s findings were, amongst other things, "MRI examination of the Lumbar Spine reveals longstanding chronic degenerative discogenic disc disease and thoracolumbar spondylosis as described with advanced discogenic changes as detailed at L5-S1, there is a focal central degenerative disc protrusion of no definable clinical significance. The findings are consistent with the individual's age and not causally related to the date of the subject incident, approximately one month prior to the performance of the MRI examination as the findings are chronic longstanding processes requiring years to develop as presented and are consistent with wear-and-tear of the normal aging process."

With respect to plaintiff's 90/180 claim, defendant relies on the EBT testimony of plaintiff which indicates that she did not lose any time from work as a result of the accident. Plaintiff testified that she was not confined to bed, nor confined to home, for any length of time and that, since the accident.

The burden now shifts to plaintiff to come forward with evidence to overcome defendant's submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained.

To support her burden, plaintiff submitted the affidavit of Richard Grosso, D.C. who examined plaintiff and continued to see her for chiropractic treatment. Dr. Grosso examined plaintiff and performed quantified and comparative range of motion tests on her cervical spine and lumbar spine. The results of the tests indicated deviations from normal. Dr, Grosso states that it was his expert chiropractic opinion that the spinal injuries sustained by the patient were causally related to the motor vehicle accident. It was further his expert chiropractic opinion that the limitation of motion of the cervical and lumbar spine was significant and permanent in nature. It was further his expert chiropractic opinion that the spinal injuries as diagnosed would inhibit the patient's ability to carry out normal activities of daily living such as sitting, standing, bending lifting and other strenuous activities. It is his expert chiropractic opinion that the disc pathology diagnosed via MRI are causally related to the subject motor vehicle accident as the findings are consistent with the clinical presentation in my office and further said spinal injuries are of a permanent nature and not subject to resolution without surgery. It is further his expert chiropractic opinion that surgery cannot be ruled out in the future with regard to her cervical spine and lumbar spine injury.

In view of the foregoing, the Court held that, even though some of the evidence presented by plaintiff did not constitute competent admissible evidence in opposition to defendant's motion for summary judgment, the Court concludes that the affidavits of plaintiff, herself, and Dr. Grosso raise genuine issues of fact as to the spine injuries causally related to the subject accident. Consequently, defendant's motion for summary judgment is denied.

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August 31, 2012

As a result of the collision, plaintiff claims that he sustained the following injuries

The action for damages stems from personal injuries allegedly sustained by plaintiffs as a result of a pedestrian knockdown/automobile accident with defendants which at Albany Avenue, Amityville, County of Suffolk, State of New York. At the time of the accident, plaintiff Mariano Lopez was a pedestrian and defendant Ronnell Davis ("Davis") was the operator of a 2009 Dodge Charger that was owned by rental a company, defendant ELRAC. Defendant Davis' girlfriend had rented the vehicle from defendant ELRAC.

A Suffolk Lawyer said that, plaintiff alleged that at the time of the accident, he was a school security guard, and was struck by the front of defendants' automobile when it was in the driveway in front of the school where he was working. It is alleged that defendants' vehicle entered the school driveway to drop off a child and was unable to back out of said one-way driveway due to a school bus pulling behind it. Plaintiff contend that, when defendants' vehicle was moving forward after being blocked by the school bus, it struck him in the area of his right knee, causing him to fall onto the hood of defendants' vehicle. Defendant Davis argues that his vehicle never struck plaintiff and that the only contact between plaintiff and defendants' vehicle was when plaintiff placed his hands on said vehicle to prevent defendant Davis from moving the vehicle any further.

As a result of the collision, plaintiff claims that he sustained the following injuries: Lumbar radiculopathy; Cervical radiculopathy; MRI of the lumbosacral spine reveals subligamentous posterior disc herniations at L4/L5 and at L5/S1 impinging on the anterior aspect of the spinal canal and on the neural foramina bilaterally; Right hip sprain; Right knee medial meniscus tear; Surgical recommendation for right knee arthroscopy; Lumbar spine lumbago;Lumbar spine HNP; EMG/NCV testing to the lower extremities revealed right S1 radiculopathy; MRI of the right knee revealed: synovial effusion knee joint, lateral patellar tilt and lateral patellar subluxation with patellofemoral chondromalacia spurring and narrowing lateral patellofemoral joint compartment, medial femorotibial joint compartment narrowing with chondromalacia, strain medical collateral ligament and motion artifact noted. Knee Chondromalacia; Knee internal derangement; Right joint effusion.

Plaintiff commenced this action by service of a Summons and Verified Complaint Plaintiff served a Supplemental Summons with Amended Verified Complaint. Defendants move, pursuant to CPLR § 3212 and Article 51 of the Insurance Law of the State of New York, for an order granting them summary judgment on the ground that plaintiff did not suffer a "serious injury" in the subject accident as defined by New York State Insurance Law § 5102(d); and move for an order dismissing the action as against defendant ELRAC, Inc. ("ELRAC") pursuant to the Graves Amendment, as there is no vicarious liability for leasing or rental car companies under New York Vehicle and Traffic Law § 388. Plaintiff opposes the motion.

The issues in this case are whether plaintiff sustained serious injury as a result of the accident and whether the action against defendant ELRAC should be dismissed on the ground that there is no vicarious liability for leasing or rental car companies.

The Court said that, it is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. 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. Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.
Within the particular context of a threshold motion which seeks dismissal of a personal injury complaint, the movant bears a specific burden of establishing that the plaintiff did not sustain a "serious injury" as enumerated in Article 51 of the Insurance Law § 5102(d). Upon such a showing, it becomes incumbent upon the non-moving party to come forth with sufficient evidence in admissible form to raise an issue of fact as to the existence of a "serious injury."
In support of a claim that the plaintiff has not sustained a serious injury, the defendant may rely either on the sworn statements of the defendant's examining physicians or the unsworn reports of the plaintiff's examining physicians. However, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Essentially, in order to satisfy the statutory serious injury threshold, the legislature requires objective proof of a plaintiff's injury. Unsworn MRI reports can also constitute competent evidence if both sides rely on those reports. Conversely, even where there is ample proof of a plaintiff's injury, certain factors may nonetheless override a plaintiff's objective medical proof of limitations and permit dismissal of a plaintiff's complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed spinal injury.

Plaintiff claim that, as a consequence of the above described automobile accident with defendants, he has sustained serious injuries as defined in New York State Insurance Law § 5102(d) and which fall within the following statutory categories of injuries:
1) permanent loss of a body organ, member, function or system; (Category 6)
2) a permanent consequential limitation of use of a body organ or member; (Category 7)
3) a significant limitation of use of a body function or system; (Category 8)
4) 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 held that, for a permanent loss of a body organ, member, function or system to qualify as a "serious injury" within the meaning of No-Fault Law, the loss must be total. To meet the threshold regarding significant limitation of use of a body function or system or permanent consequential limitation of a body function or system, the law requires that the limitation be more than minor, mild or slight and that the claim be supported by medical proof based upon credible medical evidence of an objectively measured and quantified medical injury or condition. A minor, mild or slight limitation will be deemed insignificant within the meaning of the statute.

Finally, to prevail under the "medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment" category, a plaintiff must demonstrate through competent, objective proof, a "medically determined injury or impairment of a non-permanent nature which would have caused the alleged limitations on the plaintiff's daily activities. A curtailment of the plaintiff's usual activities must be "to a great extent rather than some slight curtailment.

With these guidelines in mind, the Court will now turn to the merits of defendants' motion. In support of their motion, defendants submit the pleadings, plaintiffs' Verified Bill of Particulars and Supplemental Verified Bill of Particulars, the transcript of plaintiff Mariano Lopez's Examination Before Trial ("EBT") testimony, the transcript of plaintiff Himilice Lopez's EBT testimony, the transcript of defendant Davis' EBT testimony, the transcript of non-party witness Kim Hargwood's EBT testimony, the affirmed report of Leon Sultan, M.D., who performed an independent orthopedic examination of plaintiff on June 2, 2011, the rental car agreement entered into by defendant’s girl friend, the Police Accident Report and the Affidavit of a risk manager for defendant ELRAC.

Dr. Leon Sultan, a board certified orthopedist, he examined plaintiff Mariano Lopez and performed quantified and comparative range of motion tests on his cervical spine,
thoracolumbar spine, right hip and right knee. The range of motion testing was conducted by way of a goniometer and the results of the tests indicated no deviations from normal. Dr. Sultan's diagnosis was today's orthopedic examination does not confirm any ongoing causally related orthopedic or neurological impairment in regard to the occurrence of the accident.
Defendants argue that plaintiffs' Bill of Particulars, alleges that plaintiff suffered a medial meniscus tear, but the Supplemental Bill of Particulars only alleges chondromalacia.

Defendants contend that plaintiff had a right knee MRI which found no proof of any tears, but contained the diagnosis of chondromalacia and joint effusion. Defendants further argue that plaintiff has not had any diagnostic testing which found any meniscus tear. Defendants submit that, on the date of the accident, plaintiff went to the Emergency Room at New Island Hospital, had x-rays done of the femur and was found to have mild degenerative disease in his right hip.

With respect to plaintiff's 90/180 claim, defendants rely on plaintiff's testimony at his EBT, which indicated that, as a result of the subject accident, he missed one day of work and that he was not confined to bed or home for more than three days. Defendants submit that the subject accident occurred on a Friday and that plaintiff only missed work on the following Monday. When plaintiff returned to work, he returned to his usual duties as a security guard at the school. Defendants argue that reduction in relations and inability to play baseball does not give rise to satisfaction of the requirement to be unable to engage in material acts which constituted his usual and customary daily activities for more than 90 (sic) during the 180 days immediately following the occurrence.

With respect to defendants' "Graves Argument," defendants submit that conceding for the purposes of this motion that defendant ELRAC, was the actual vehicle owner as alleged in the complaint, the plaintiff's Complaint as against defendant, ELRAC, Inc., must be dismissed as against it. Under the Transportation Equity Act of 2005, 49 U.S.C. section 30106, there can be no vicarious liability as against defendant, ELRAC, Inc., a non-actively negligent owner of the rented/leased vehicle over which it had no control at the time of the accident. There is no liability upon a leasing/rental company vehicle owner for the alleged negligent acts of a renter/lessee.

Based upon this evidence, the Court finds that defendants have established a prima facie case that plaintiff did not sustain serious personal injuries within the meaning of New York State Insurance Law § 5102(d).

The burden now shifts to plaintiffs to come forward with evidence to overcome defendants' submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained.

To support their burden, plaintiff argue that "the concomitant effects of all Plaintiff's aforementioned spine injuries and it sequel will be permanent in nature, and that the aforementioned spine injuries were caused, aggravated, exacerbated and/or precipitated by the aforementioned accident, together with their natural flowing sequelae, are permanent and progressive in nature, and/or effects."

Plaintiff submits the report of Dr. Richard Rizzuti, of All County Open MRI & Diagnostic Radiology, under whose auspices administered and supervised the administration and examination of the MRI of plaintiff’s lumbosacral spine. Plaintiff also submits the report of Dr. Robert Diamond, of Stand-Up MRI of Carle Place, under whose auspices administered and supervised the administration and examination of the MRI of plaintiff’s right knee. With respect to the MRI of the right knee, the impression was, synovial effusion knee joint.

As previously stated, unlike the movant's proof, unsworn reports of the plaintiff's examining doctors or chiropractors are not sufficient to defeat a motion for summary judgment. Therefore, the unsworn medical narrative reports of Richard Parker, M.D., of South Nassau Orthopedic Surgery & Sports Medicine, P.C., are not sufficient to defeat defendants' instant motion.

However, the medical narrative reports of Richard Parker, M.D., of South Nassau Orthopedic Surgery & Sports Medicine, P.C., were affirmed. Dr. Parker's report indicates that plaintiff was seen that date in follow-up for spinal injuries sustained as a result of a work related accident. The range of motion tests performed on plaintiff’s lumbar spine indicated deviations from normal. Examination of plaintiff’s right knee revealed "patient has pain and tenderness over the medial joint line."

The affirmed medical narrative report of Walter E. Mendoza, D.C., indicates that plaintiff first presented to his office on March 12, 2010 and returned for re-examinations seven separate times between April 26, 2010 and August 10, 2011. At all of the visits, quantified and computerized range of motion tests performed on plaintiff Mariano Lopez's lumbosacral spine indicated deviations from normal. Additionally, at all of the visits, tests performed on plaintiff Mariano Lopez's right knee revealed pain. Dr. Mendoza concluded his reports stating, the patient remains partially disabled he can no longer perform all duties, including lifting, bending, climbing or kneeling. It is therefore, my opinion to a reasonable degree of chiropractic certainty that a prognosis for a full and complete recovery is most certainly poor. The patient will be left with a permanent partial disability.

With respect to the 90/180 claim, plaintiff submit that, in his EBT testimony, plaintiff stated that his employment duties have become more difficult due to his inability to standing without feeling pain to his right knee. Additionally, plaintiff testified that, prior to the subject accident, he would regularly play baseball with his grandchildren, but since the date of accident, and solely as a result of said accident, he has been totally unable to play baseball. Plaintiff added that he cannot stand, walk up/down stairs and walk for long periods of time without feeling pain due to the injuries he sustained in the subject accident.

In view of the foregoing, the Court held that plaintiff failed to address defendants' arguments with respect to dismissal of the action against defendant ELRAC based upon the Graves Amendment.

Accordingly, the portion of defendants' motion for an order dismissing the action as against defendant ELRAC, Inc. pursuant to the Graves Amendment as there is no vicarious liability for leasing or rental car companies under New York Vehicle and Traffic Law § 388 is hereby granted.

However, with respect to plaintiffs' claims of "serious injury" under the categories of permanent loss of a body organ, member, function or system; (Category 6), a permanent consequential limitation of use of a body organ or member (Category 7), a significant limitation of use of a body function or system (Category 8) and 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 concludes that the acceptable evidentiary documentation presented by plaintiffs clearly raise genuine issues of fact as to spinal injuries causally related to the subject accident. Consequently, the portion of defendants' motion for summary judgment and dismissing plaintiffs' Verified Complaint is hereby denied.

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August 29, 2012

When a person is injured in a vehicle accident in New York

When a person is injured in a vehicle accident in New York, they are limited by the language of the laws that apply to personal injury as far as filing for a compensable lawsuit. There are boundaries that must be adhered to as far as claims of injury are concerned. The injury must be severe as defined by the statutes and it must be permanent as defined by the statute. In order for a person to be able to prove that the injury that they have incurred is both severe and permanent, they are required to have medical proof that can be presented in a court of law.

This can be in the form of a doctor’s testimony, but that doctor must be able to provide specifics on the medical tests that were performed to back up his contention that the injury is both severe and permanent. If the doctor only provides an opinion, then the court may or may not be impressed to agree with him. However, if the doctor provides specific tests that demonstrate that the person has restricted or lost use of a member of their body, then they have probably met the criteria for the injury to be considered severe and permanent. That is not always the case.

On August 8, 2008, a woman was in the intersection of Middle Neck Road and Northern Boulevard. This intersection is located in Nassau County, New York. She was a passenger in a 2007 Lexus that was struck from behind by another vehicle. At the time of the injury, the woman got out of the car and proceeded to walk around the accident scene unaided. She even drove away from the accident scene. However, later, she went to a local hospital to receive treatment because she stated that she began to have pain in her right knee. When her right knee was examined by an orthopedist, he diagnosed her as having a meniscus tear of her right knee. The orthopedic doctor also stated that she had several other soft tissue injuries to her knee. She also claimed that she was getting headaches since the accident. She was examined by the doctor to determine if there was a spinal injury that would account for the symptoms. The doctor determined that she had suffered from a lumbar strain that restricted the range of motion to the cervical and lumbar spines.

The insurance company for the other driver maintains that the woman did not demonstrate any signs of injury at the accident scene and that it was many months after the accident before she claimed any injury. They maintain that she did not suffer from a serious or permanent injury as defined by the laws of the state of New York. They made an application to the court to have a summary judgment issued in their behalf dismissing the claims that the woman made to the court.

The woman made several mistakes in the presentation of her legal case. She failed to get sworn statements from the doctors whom she had been examined by. She failed to have documents notarized and properly entered into evidence. The medical reports that she used to support her case were not sworn documents and would not normally have been admissible in court at all. The only reason that the state decided to use them was that the opposing party was using the same documents to support their contentions. Based on the evidence that was presented in the form of those medical records, the woman had not presented a case that her spinal injuries were serious and permanent under the law. The request for summary judgment by the insurance company was granted dismissing the woman’s case.

Continue reading "When a person is injured in a vehicle accident in New York" »

August 27, 2012

On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW

On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW as it was stopped at the intersection of Merrick Road and East Shore Drive. As a result of this accident the woman sustained a spinal injury: she had swollen discs and a severe sprain of the lumbar spine. She asserts that two weeks after the accident occurred, she was ordered to rest in bed by her Manhattan doctor. She was also confined to her home and could not go to work until after another four weeks.

She claims that after the accident, she could no longer play volleyball or do gardening. She cannot stand or sit for more than thirty minutes. Fifteen months after the accident, the woman joined a local gym where her favourite workout was on the recumbent bicycle.

The defendant owner and driver of the BMW that allegedly rear-ended her Nissan filed a motion for summary judgment. He claims that the complaint should be dismissed because the woman failed to state that the spinal injury she sustained is a serious injury. She also failed to state which classification of serious injury she falls under. There are five categories of serious injury under the Insurance Law: death, dismemberment, significant disfigurement, fracture or loss of a fetus, total loss of use of a body organ, function or system.

The Long Island owner and driver of the BMW asserts that the woman did not suffer from a permanent limitation of the use of her spinal or cervical spine. He submitted the medical records from the hospital emergency room and the initial findings at the time of her admission into the hospital right after the accident and these do not show any physical limitation or loss of range of motion. The orthopaedic surgeon concluded that the range of motion tests he conducted on the woman showed that her ranges of motion were within normal range. He also made a finding that the pain she feels and the spinal injury she complains of may as well be caused by a genetic condition (brittle bone disease) that has largely been undiagnosed. His findings also state that the woman suffered sprain of the muscles along the spine but that these will resolve themselves and have resolved themselves in time.

The woman then submitted her own affidavit. Her opposition to the motion for summary judgment includes her claim that even when the initial findings at the time of the accident show that there was no permanent limitation to the use of her cervical and lumbar spine, still, the findings of the doctors much later which can prove that her spinal injury was caused by the accident is also sufficient to raise a material issue of fact.

The woman submitted the affidavit of her chiropractor who treated her once immediately after the accident and the second time four years later just before the trial. She also submitted unsworned and unaffirmed statements and findings of her attending physician and an orthopaedic surgeon.

The only question before the Court is whether or not the motion for summary judgment filed by the owner and driver of the BMW should be granted.

The Court held that when a motion for summary judgment is filed, it is the duty of the person who filed it to prove that he is entitled to the summary judgment. When he succeeds in proving that he is entitled to the summary judgment, the burden of proof then shifts to the person opposing it to prove that a material issue of fact still exists that needs to be tried before a jury.

The Court held that the owner and driver of the BMW has proved that he is entitled to the summary judgment. He proved that the spinal injury complained of by the woman does not fall under any of the five categories of serious injury for which she can claim compensation in damages.

The Court also held that the woman failed to submit acceptable and admissible proof that there are still material issues of fact that need to be tried.

Continue reading "On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW" »

August 25, 2012

A man and his girlfriend rented a car from a car company and brought their kids to school

A man and his girlfriend rented a car from a car company and brought their kids to school. The school’s driveway allowed cars to go only one way. When they neared the entrance and the children had gotten off, their rental car was sandwiched between two school buses that were also letting children off. When the bus in front of their rental car went forward, the couple moved their car but hit the school security guard who was standing near the front of the rental car driven by the couple.

The security guard was hit in his right knee for which reason he fell on the hood of the couple’s rental car. The defendants claim that they never struck the security guard. He stood in front of their rental car and struck the hood of the car with his palm to stop them from moving.

The security guard filed a suit in damages against the couple and against the rental car company and their insurers. He claims to have sustained serious spinal injury especially of the lower back, the hip and his right knee joint.

The couple and the rental car company moved for summary judgment asserting that the security guard did not sustain a serious injury.

To support their motion for summary judgment, they offered the medical records of the security guard, specifically, the report of the orthopaedist who examined the security guard before the trial commenced. The orthopaedist conducted range of motion tests on his cervical and lumbar spine, his right hip and right knee and found that his bones were stable and the nerves were intact. In his opinion, he cannot confirm any ongoing or present impairment which may be traced to the accident which occurred in 2010.

They also submitted a transcript of the deposition testimony of the security guard that after the accident which occurred in March 12, 2003, he was taken to the emergency room for x-rays. He was unable to work for three days after that. The Manhattan defendants assert that the accident occurred on a Friday and so the security guard was unable to work for only one day, the following Monday. The security guard himself stated that he returned to his usual duties as school security guard.

The car rental company’s motion for summary judgment alleges that under the Graves Amendment, as the owner of the rental car, it cannot be made liable in damages for the injury sustained by the security guard when it did not have any control over the rental car at the time of the accident. As owner, it cannot be made liable to the negligent acts of the couple who rented the car from it.

The only question before the Court is whether or not the motion for summary judgment should be granted.

The Court held that the defendant couple and car rental company have both proved that they are entitled to a summary judgment. However, the Court also held that this only serves to shift the burden to the security guard to prove that there are material issues of fact that have yet to be tried before a jury.

The security guard presented medical narrative reports of several physicians who examined him. They all gave an opinion that the hip, knee and spinal injury sustained by the security guard were all caused by the accident. They also gave the opinion that the injury sustained was permanent and progressive. However, the Court found that these medical narrative reports by the physicians who examined the security guard were not sworn to by them. They were not in sufficient form to be admissible. However, the plaintiff succeeded in submitting the same medical narrative reports of the doctors after they have been subscribed and sworn to by the physicians who prepared them.

The Long Island Court held that the motion for summary judgment filed by the rental car company is granted but the security guard has raised issues of material fact that need to be tried before a jury. Their motion for summary judgment is denied.

Continue reading "A man and his girlfriend rented a car from a car company and brought their kids to school" »

August 23, 2012

A man was involved in a car accident in 2002 and he sustained injury in his shoulders

A man was involved in a car accident in 2002 and he sustained injury in his shoulders, neck and back. According to an MRI report his spinal injury involved bulging discs that impinged his spinal canal. He received treatment and therapy for his injury and he also received compensation for the spinal injury he sustained when he missed work for the days of his confinement until he recovered from his injury.

In 2008, the man figured in another motor vehicle accident in The Bronx. He filed a suit for damages from a personal injury he sustained when he injured his back, shoulders and neck. He claims that he is in constant pain; he has lost strength in his arms; he has lost the full range of motion in his back and neck; and cannot perform his regular daily tasks and perform his regular work.

The man sued the defendants who were owners of the motor vehicle that figured in the accident as well as their insurer. He claims that he sustained serious injury for which he demands compensation under the Insurance Law.

The defendants filed a motion for summary judgment asking for the dismissal of the complaint. The defendants claim that the injuries complained of by the man in 2008 were the exact same injuries he claimed and received compensation for way back in 2002. They presented evidence to prove that after the accident in 2008, the man was brought to the emergency room where x-rays were taken. The physician who interpreted the x-ray plates reported that there were no fractures, no dislocation or abnormalities in the bones. The report also stated that his spinal discs were normal.

The defendants also gave proof that the man went for treatment and therapy for three days after the 2008 accident but after three days, he stopped going to therapy for seven months. On top of that, in 2010, a physician conducted a range of motion test on the man and found that all the strain on the muscles of the neck, back and shoulder have all been resolved.
The defendants claim that there is no objective medical evidence that the man sustained a serious injury that would render him unfit to work or perform his customary daily tasks for eight months.

The only issue before the Brooklyn Court is whether or not the motion for summary judgment should be granted.

The Court held that the defendants have sufficiently proved that they are entitled to a summary judgment but that this merely serves to shift the burden to the man to prove that there still remains a material issue of fact that needs to be resolved by a jury.
The Court then turned to look at the evidence provided by the man. He submitted an affidavit where he alleged that he is in constant pain and that he moves with difficulty and can no longer perform his regular work or even do household chores. The Court then held that it is not sufficient for the man to merely make a subjective complaint of pain. There must be objective medical proof of a serious injury. There must be an examination by a physician who can report the existence of a serious injury. The Court also held that even if there exists proof of serious injury, if there is also proof that there are factors or events that interrupt the chain of causes between the accident and the injury he sustained, the motion for summary judgment may still be granted.

The man submitted an affidavit of his chiropractor. The affidavit states that the injury sustained by the man was related to the 2008 accident. The Court rejected this affidavit as insufficient because it makes conclusions without presenting the objective facts on which the conclusions were based.

The expert presented by the man failed to rebut or even address the findings of the attending physicians of the man in 2008 that showed that the injury he complains of in 2008 were already present as early as 2002.

The Court also rejected the chiropractor’s affidavit because it totally contradicted a similar affidavit she executed in 2002 stating that the same spinal injury complained of by the man had also rendered him unfit for his customary employment and unable to perform his normal daily activities.

The Court granted the motion for summary judgment.

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August 20, 2012

A police officer was finishing his shift in 1953

A NYC police officer was finishing his shift in 1953. He opened the passenger door of the police car he was driving when he got to the precinct and was removing his shotgun from the car when it suddenly fired. It wounded him and he needed an operation to remove the bullet which had lodged in his abdomen.

He eventually recovered after treatment. He received compensation from the Workmen’s Compensation Board for his loss of earnings during the time of his confinement, treatment and recovery from the gunshot wound. The case was closed in 1957 when the physicians who treated him declared that there was no more disability flowing from the gunshot accident.
Nine years later, in 1962, as he was riding in his police car, he figured in a motor vehicle accident. He sustained injury to his neck and spine. The police officer was paid his salary for the several weeks of his confinement, treatment and recovery from the automobile accident. The police officer sued the owner and driver of the motor vehicle that had caused his spinal injury and the case was settled by them and compensation was duly paid for his spinal injury.
In 1965, the police officer was relieved of his duties at the police precinct. He went on sick leave and he did not work. He then claimed Workmen’s Compensation for his permanent and total disability resulting from the Westchester automobile accident in 1962.

The attending physician reported that the police officer had constant pain in his right side, from the lower spine down to the right leg and often radiating to the left leg. The physician advised confinement in the hospital for x-rays and for further treatment. The Workmen’s Compensation Board reopened the 1953 accident investigation.

Months later, the police officer was admitted into the hospital where he was placed in traction. He was operated on because the doctors suspected that the 1953 gunshot accident contributed and exacerbated the spinal injury he sustained. He was fitted with a spinal brace and discharged after a month.

The police officer went back to work and he was given desk duty for which he got paid his usual wages in full. The Workmen’s Compensation Board issued a ruling that when the police officer was reassigned to desk duty, he was already receiving full pay for his disability.
The police officer applied for desk duty because he could not stand being outside in the cold as it made his pain worse. He was advised that because he was paid his full salary even if he was only confined to desk duty, he was already receiving an advance payment of his compensation for his disability.

The police officer appealed this finding of the Workmen’s Compensation Board. It was his contention that the full wages he obtained cannot be considered as an advance on his disability compensation because his wages were paid to him for services rendered.
The only question before the Court is whether or not his wages can be considered an advance on his disability compensation.

The Court held that the police officer’s reassignment to desk duty is a common practice and this does not diminish the amount of salary he should receive. The wages he received were for services rendered by him. There is no evidence that light duty was given only to police officers who are suffering from a disability. There is no evidence that the salary paid to him was a gratuity.

The Board’s finding that the salary he received was an advance payment of his disability compensation is reversed.

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August 15, 2012

A man, age 24, alleges that at approximately 11:20 a.m., a motor vehicle

A man, age 24, alleges that at approximately 11:20 a.m., a motor vehicle he owned and operated collided with another vehicle owned by a woman and operated by a man. The woman and the driver moved for an order to dismiss the man’s complaint against them.

In support of their motion to dismiss the complaint, the opponents submit an affirmed report of examination of orthopedist, neurologist, and radiologist. The opponents also submit an un-affirmed report of the man’s radiologist. The MRI’s were purportedly performed on the dates of the reports. The court notes that the report of a physician which is not affirmed or subscribed before a notary or other authorized official is not competent evidence.

The Queens orthopedist found normal range of motion, comparing the results to normal, of the man’s spine, lower extremities, left elbow and left and right hands and shoulders and found no muscle spasms. He also found normal muscle strength, sensation and reflexes. He also provides results from numerous other orthopedic tests. He diagnosed the man’s cervical radiculopathy, resolved. The thoracolumbosacral radiculopathy, bilateral shoulder contusion, left elbow contusion and bilateral hand contusion were all resolved. He noted that the MRI of the cervical spine revealed a preexisting malformation which could affect recovery.

The Staten Island neurologist found normal range of motion, comparing the results to normal, of the man’s cervical spine and back. The man’s motor, sensory and coordination examinations also revealed normal results. The neurologist diagnosed the man’s cervical and lumbosacral paraspinal muscle sprain was resolved. He further concluded that the man had a normal neurological examination and he can continue with his current activities at work, as well as activities of daily living without restriction.

The radiologist reviews of the MRI of the man’s lumbar spine concluded that the man had a minimal disc bulge and it has no evidence of spine injury. In addition, the un-affirmed MRI reports of the man’s thoracic spine, brain and left shoulder from his radiologists revealed normal results.

As a result, the court finds that the reports of the opponent’s examining physicians were sufficiently detailed. The court finds that the opponents have made to show that the man did not sustain a serious impairment within the meaning of insurance law. With that said, the man come forward with some evidence of allege impairment to raise a triable issue of fact.

The man consequently submits an affirmation of neurologist, an affirmation of radiologist, affidavit of physical therapist , un-affirmed records covering treatment rendered to him as an inpatient at one hospital, affidavit of physical therapist and an affidavit of the man, himself.
However, the man failed to submit objective medical evidence sufficient to raise a triable issue as to whether or not he sustained a serious injury within the meaning of insurance law. Furthermore, the court also finds that the man has failed to provide sufficient evidence that the injuries are causally related to the accident.

Based on records, there is a gap in the man’s treatment between the alleged end of physical therapy and his visit to a physician, after service of the motion to dismiss the complaints. The record contains several contradictory explanations in the treatment. Consequently, the court finds that it is unnecessary to determine whether the man’s explanation for his eight month gap in treatment is reasonable, as the court has found that the man failed to raise an issue of fact even without considering the gap.

Moreover, the man’s complaints of subjective pain do not by themselves satisfy the serious impairment requirement of the no-fault law. The man also failed to submit competent medical evidence showing that the injuries he sustained caused him to be incapable of performing all of his usual and customary daily activities for ninety days of the first one hundred eighty days following the accident.

The court already examined the remaining contentions and finds them to be without merit. Furthermore, the court ordered that the opponent’s request to dismiss the complaint against them is granted.

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August 9, 2012

A woman was involved in a motor vehicle accident sometime on October 9, 2009

A woman was involved in a car accidentsometime on October 9, 2009 at the corner of Bellmore Avenue and Sunrise Highway in Nassau County, New York. The police arrived at the scene but no ambulance responded. The woman alighted from her car all by herself and after the initial investigation by the police the woman drove her car from the scene of the accident to her office.

The woman said she felt pain in her lower back and she experienced headaches. She went for an x-ray and consulted a doctor who recommended that she undergo treatment from a chiropractor. She went and saw the chiropractor for about a year and then she stopped seeing the chiropractor and went instead for physical therapy for a few months. She eventually stopped the physical therapy.

As of the time she filed this suit in damages, she was no longer receiving treatment for her injury. She claims that as a result of the accident, she lives in constant pain and she suffered spinal injury particularly, injury to her cervical and lumbar spine. She claims that she has lost significant motion in her spine and she asserts that this spinal injury qualifies as “serious injury.” She claims that the spinal injury has caused a limitation on her use of her spine which prohibits her from her customary daily activities.

The defendants (the other driver who figured in the motor vehicle accident and his insurer) both filed a motion for summary judgment alleging that there is no serious injury.
The only question before the Court is whether or not the spinal injury complained of by the plaintiff is serious injury.

The Court in Suffolk noted that the defendants submitted the affirmations of physicians who conducted examinations of the plaintiff just before trial and they concluded that there is no compression deformity of the discs on the spine of the plaintiff. An MRI was performed on her and there is no evidence of impingement on the nerves in her spine as she complains.

The physicians opined that the accident may have caused strains on the cervical and lumbrosacral spine but that the strains she experienced were mild and would have resolved in time and without treatment.

With this proof, the Court held that the burden of proof has shifted to the woman to prove that there exist material issues of fact that need to be tried before a jury.

The woman has submitted the MRi findings of the doctors who examined her at or around the time of the accident in October 2009 and they found herniations (swelling) of the cervical spine and that the swollen parts are impinging on the nerves.

An orthopaedist who examined the woman in 2009, 2010 and 2011 has also submitted his findings that the woman is partially disabled as the range of motion in her spine has been significantly reduced. He also opined that the reduction in motion in her spine was a direct result of the accident in 2009.

A neurologist whom the woman consulted in 2010 has also submitted his finding that not only was there a decrease in her range of motion but that there is numbness, tingling and weakness in her neck and spine. He had recommended physical therapy.

The plaintiff submitted her own affidavit stating that after the accident, she missed work for a few days. She could not do much else after work and on the weekends for four months other than stay in bed resting. She stopped seeing the chiropractor and the physical therapist because she had not noticed any improvement and because her insurance had stopped paying for the treatments.

With the submission of the woman’s evidence in opposition to the motion for summary judgment, the Court ruled that the motion for summary judgment is denied.

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July 30, 2012

A woman was involved in a motor vehicle accident sometime on October 9, 2009

A woman was involved in a motor vehicle accident sometime on October 9, 2009 at the corner of Bellmore Avenue and Sunrise Highway in Nassau County, New York. The police arrived at the scene but no ambulance responded. The woman alighted from her car all by herself and after the initial investigation by the police the woman drove her car from the scene of the accident to her office.

The woman said she felt pain in her lower back and she experienced headaches. She went for an x-ray and consulted a doctor who recommended that she undergo treatment from a chiropractor. She went and saw the chiropractor for about a year and then she stopped seeing the chiropractor and went instead for physical therapy for a few months. She eventually stopped the physical therapy.

As of the time she filed this suit in damages, she was no longer receiving treatment for her injury. She claims that as a result of the accident, she lives in constant pain and she suffered spinal injury particularly, injury to her cervical and lumbar spine. She claims that she has lost significant motion in her spine and she asserts that this spinal injury qualifies as “serious injury.” She claims that the spinal injury has caused a limitation on her use of her spine which prohibits her from her customary daily activities.

The defendants (the other driver who figured in the motor vehicle accident and his insurer) both filed a motion for summary judgment alleging that there is no serious injury.
The only question before the Court is whether or not the spinal injury complained of by the plaintiff is serious injury.

The Court in Suffolk noted that the defendants submitted the affirmations of physicians who conducted examinations of the plaintiff just before trial and they concluded that there is no compression deformity of the discs on the spine of the plaintiff. An MRI was performed on her and there is no evidence of impingement on the nerves in her spine as she complains.

The physicians opined that the accident may have caused strains on the cervical and lumbrosacral spine but that the strains she experienced were mild and would have resolved in time and without treatment.

With this proof, the Court held that the burden of proof has shifted to the woman to prove that there exist material issues of fact that need to be tried before a jury.

The woman has submitted the MRi findings of the doctors who examined her at or around the time of the accident in October 2009 and they found herniations (swelling) of the cervical spine and that the swollen parts are impinging on the nerves.

An orthopaedist who examined the woman in 2009, 2010 and 2011 has also submitted his findings that the woman is partially disabled as the range of motion in her spine has been significantly reduced. He also opined that the reduction in motion in her spine was a direct result of the accident in 2009.

A neurologist whom the woman consulted in 2010 has also submitted his finding that not only was there a decrease in her range of motion but that there is numbness, tingling and weakness in her neck and spine. He had recommended physical therapy.

The plaintiff submitted her own affidavit stating that after the accident, she missed work for a few days. She could not do much else after work and on the weekends for four months other than stay in bed resting. She stopped seeing the chiropractor and the physical therapist because she had not noticed any improvement and because her insurance had stopped paying for the treatments.

With the submission of the woman’s evidence in opposition to the motion for summary judgment, the Court ruled that the motion for summary judgment is denied.

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July 25, 2012

On March 24, 2006, a 77 year old man was about to cross the street

On March 24, 2006, a 77 year old man was about to cross the street at the corner of Fifth Avenue and West 139th Street. He was hit by a car. This car hit the 77 year old because it was also hit by another car from the back.

The 77 year old man was hospitalized in Manhattan. Later he filed a case for damages and he sued the two car drivers. The 77 year old man presented the medical findings which were made from tests conducted immediately after the accident while the two drivers presented the findings of a neurologist, an orthopedic surgeon, radiologist and a plastic surgeon.

The orthopedic surgeon conducted a range of motion tests on the entire spinal column of the 77 year old man to determine if he sustained any spinal injury. He observed that the movement of his spine is limited but he did not attribute this as resulting from the accident but from his advanced age. All the other medical specialists who examined him all gave the opinion that the 77 year old man suffered no permanent disability or spinal injury. The orthopedic surgeon conducted these tests in 2008, two years after the accident occurred in 2006.

The two car owners then moved for summary judgment asking that the complaint against them be dismissed because the 77 year old man did not suffer any serious spinal injury. According to them, their liability stems from the Insurance Law which requires them to pay damages in case of permanent loss of an organ; or that a body system has become significantly limited.

The 77 year old Long Island man then presented a radiologist who tried to show through scans and MRIs that there was a swelling in his lumbar and cervical vertebrae. The radiologist performed the scans and MRIs two days after the accident took place. He gave an opinion that there is medical evidence that the 77 year old man suffered serious spinal injury in his lumbar and cervical spine.

The only question before the Court is whether or not the motion for summary judgment should be granted.

The Court held that the Insurance Law explicitly mandates that for the person who was injured in a motor vehicle accident, the injured person must show that he has sustained a serious injury.

A serious injury under the Insurance Law must result in a significant disfigurement or a permanent loss of a body part that renders his function limited or, if the impairment is not permanent in nature, the injury must prevent him from performing his usual and customary activities for at least ninety to one hundred eight days immediately after the injury occurred.
The issue of whether or not the injury sustained is a serious injury is the crux of an action for damages resulting from a motor vehicle accident. The purpose of requiring proof of a serious injury is to prevent people from making frivolous and fraudulent claims.

To prove that an injury was serious in nature, there must be objective medical evidence such as x-rays, CT scans, MRIs or ultrasounds.

Both the 77 year old man and the two drivers who figured in the motor vehicle accident submitted competent medical evidence that shows two conflicting medical findings. When the experts of both the parties present conflicting medical findings, it is then clear that a material issue has been raised that must be presented and tried before a jury.

For this reason, the motion for summary judgment filed by the two drivers must be denied. It is to be noted that the medical evidence proffered by the drivers were from tests performed two years after the injury while the medical evidence proffered by the 77 year old man were performed just days after the injury. The question, then, of which of the results show that serious injury resulted from the accident is for a jury to appreciate.

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June 7, 2012

Record Brain and Spinal Injury Payout Goes to 9-year-old Boy

A 9-year-old boy who was accidentally run over by his own father on a family day out was recently awarded compensation worth £8.1 million today. This is a record-setting amount for a court-approved award for a spinal injury, a source says.

The boy will need lifelong care after suffering severe spinal and brain injuries in March of 2002 when he was just two-and-a-half years old.

The boy’s father did not see him when he reversed the car at Mead Open Farm, near Leighton Buzzard, Bedfordshire. The father drove over his son.

Currently, the child lives in Milton Keynes with his mother, who has remarried, his twin brother, and his 7-year-old twin siblings.

The boy’s legal team from The Bronx and Brooklyn told the presiding Justice at the High Court in London that the boy’s father’s insurers, who earlier admitted liability, had made a payment of £1.7 million to enable the family to buy a home suitable for the special needs of the child. The legal counsel also provided clear evidence of the child’s current needs. A rep found that the settlement that was reached entails a £2.5 million lump sum payment in addition to annual payments of £220,000.

The judge said, ““I am amazed and admiring of the care – not only the physical care but the thought and consideration of the family – which has gone into [the boy’s] upbringing,” she said. “It is quite clear that, although he is in many ways a delightful boy, he can be difficult on occasions, and I have no doubt that considerable patience, forbearance and hard work is required to deal with that.

“I wish him, and the family as a whole, well for the future and, while this order cannot possibly put him back to the circumstances in which he otherwise would have been, I hope it will play its part in enabling him to live to his full potential and assist the family in the difficult task of providing for his future.”

The boy’s mother is happy that the case is over and that the judge saw to it that her son would be cared for during the rest of his life – however long that may be.

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May 29, 2012

Roderick McCauley was driving east on Route 3

Roderick McCauley was driving east on Route 3 near the approach of the bridge crossing the Raquette River. He noticed a snow plow stopped at the edge, and then it moved forward. It again stopped and moved forward towards him. When he saw this, he drove his vehicle to the right. According to a report, his right wheels were on the shoulder. He drove in the same position at a speed of about 20-25 miles per hour until he passed the snow plow. He tried to turn the car back to the paved road. The front wheel went up, but as he accelerated to bring the rear wheel up, the back end shook and the car skidded across the road. It went through the space in between the guard posts, over the bank and into the river. There were five other people in the vehicle with Mr. McCauley. McCauley and two other passengers drowned, and the three others survived but suffered spinal injuries.

The representatives and the survivors filed a case against the State for the negligence in maintaining the roads, which included the shoulder. They said that the pavement was raised above the shoulder and that there were no guard rails. The Court of Claims in Queens and Westchester said that the elevation was not important because they did not have a reason to be on the shoulder as there was no emergency. They ruled that there is no liability from the State. They said that the car skidded because of the negligence of Mr. McCauley.

The Supreme Court Appellate Division received an appeal for this ruling and reviewed the facts. A Lawyer says that guard rails are set up to protect traffic from special hazards. Special hazards are high embankments, a deep and rapid river, or a sharp mountainside drop. It is their opinion that this is a negligence of the State in the maintenance. They said that it played a big part in causing more casualties. They also said that a careful driver who just trying to avoid an accident from happening should have been able to use the shoulder with no problem if properly maintained. It is not negligence for a driver if he used the shoulder to avoid an oncoming snow plow that may occupy part of the lane that he was using. According to the witnesses, they slowed down in the approach. The contest that he should have stopped on the shoulder or not have continued driving and causing the spinal injury on the shoulder still requires that the State maintain the shoulder of the road properly as it could have cause an accident. If Mr. McCauley was not a cautious driver, he would not have been using that shoulder in the first place and may have hit the snow plow instead.

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May 5, 2012

August 6, 2006 he noticed that O’Brien’s car was haphazardly parked along Church Lane

According to a Lawyer this is a case of driving while intoxicated involving minor accident. Robert O’Brien, according to Officer Wenzler who was also the sole witness to everything that happened testified that at about 8:45pm on August 6, 2006 he noticed that O’Brien’s car was haphazardly parked along Church Lane. He also noticed that O’Brien was asleep behind the wheels so he decided to take a closer look to investigate. Upon reaching O’Brien’s car, Officer Wenzler noticed that there was a half empty bottle of Smirnoff vodka in between O’Brien’s legs. He also noticed a couple of empty cans of Budweiser beer on the car floor, at O’Brien’s feet.

The driver’s window was half opened and upon reaching the driver’s side, Officer Wenzler immediately smelled the strong scent of alcohol from inside the vehicle as well as from O’Brien. He also noticed the strong smell of urine, evident from the soiled pants of O’Brien. Officer Wenzler also noticed that the front bumper of O’Brien’s car appeared to have “touched” the rear bumper of the car immediately in front of O’Brien. Upon inspection, there appear to have no major damage on both cars except from evident scratches and a minor dent on O’Brien’s car.

According to further investigation, a source said that when questioned by Officer Wenzler, O’Brien admitted that he was driving while drinking. Officer Wenzler asked for any identification, as well as license and registration which O’Brien was able to provide only after 5 minutes of looking for his wallet which was all along in the back pocket side of his pants. When O’Brien was asked to step out of his car, it was obvious from the way O’Brien moved while exiting his car that he was very much hung over or possibly still drunk. Further, according to Officer Wenzler, O’Brien had glassy stare and blood shot eyes which is very common to people who are overly intoxicated.

After administering several field sobriety test which O’Brien failed, Officer Wenzler then placed O’Brien under arrest and brought him to the police precinct where he was read his rights. Although there was no sufficient property damage, Office Wenzler said that he placed O’Brien under arrest on grounds of driving while intoxicated which O’Brien willingly admitted. This is not tolerated in Nassau and Suffolk.

This is now where the question and the discussion began. O’Brien and his lawyers are questioning his arrest wherein there was no sufficient amount of property damage other than the few scratches and minor dent that O’Brien’s car and the car immediately in front of him incurred when he tried to park while under the influence of alcohol. During the trial, still according to the Lawyer, there have been many comparison about this case to previous cases in the past which gave the case a lengthy discussion. In the end, the court decided that it will still need further proceedings and ordered both parties to appear in court on May 30, 2007.

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April 12, 2012

This is an unfortunate accident that happened to Richard Jarrett

This is an unfortunate accident that happened to Richard Jarrett on September 4, 1972. Jarrett was a passenger in Mr. and Mrs. Kenneth Dell. At around 11 in the morning, the car driven by Mr. Dell had a flat tire along New York State Thruway. Mr. Dell promptly drove the vehicle on the left divider in order to avoid traffic. Unfortunately the jack in the car was defective so Mrs. Dell and Jarrett went out of the car and crossed the three southbound lanes, hoping that they can borrow a jack from somebody in the nearby golf course area.

As Mrs. Dell and Jarrett were coming back to their car, Jarrett carried the jack trailing Mrs. Dell by only a few feet. According to a source, from what Jarrett can recall, it was a clear day. Jarrett was carrying the large part of the jack on his left shoulder and the base on his right hand. Jarrett also testified that before he went ahead to cross the three southbound lanes, he looked to his left to see if there were oncoming traffic. He saw two vehicles approximately 500 yards (1,500 feet) away so started crossing. That was the last thing he remembered and the next thing he knew was he was already in the hospital being looked at by a doctor three months later.

Still according to a Lawyer, based on Mr. Dell’s story from where he was located, before Jarrett crossed the three lanes, there were three vehicles approaching approximately 1000 feet away. He saw the two other vehicles slowed down but the third vehicle, driven by Vincent Madifari, never slowed down. What he saw was when the two other vehicles slowed, Madifari’s car passed by them then swerved to the right. Unfortunately, Jarrett was already on that part of the road. Mr. Dell didn’t actually see the impact but heard impact and the next thing he saw was Jarrett on the ground.

On Madifari’s part, he had a passenger on that day, his wife. But he called no witness during the trial. He gave his own account of what had happened based on what he saw while he was driving. Just like Jarrett’s account it was indeed a clear day. Madifari testified that he could see at about 500 feet ahead. He was driving on the left lane which was the fast lane at about 45 miles per hour. He saw Mr. Dell sitting in front of his parked car but saw no one crossing the road. He was also aware of the two cars travelling on his right side. According to a report, Madifari did slow down because he really didn’t see anyone crossing until after the impact. This was very evident on the spinal injuriesthat Jarrett sustained because of the accident. Jarrett suffered brain damage and amnesia. He was also unable to use his left arm and was unable to resume work because of the memory loss. Doctors in Staten Island are aware of this.

It was discussed in length whether the car accident was a result of negligence on the either part. Who was at fault in this unfortunate incident. There were many arguments that were presented but it was evident that has Madifari saw Jarrett crossing the road, Madifari would’ve done something, slowed down or hit the breaks hard, had he seen Jarrett, based on the reports given to the rep.

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April 6, 2012

Martin Stone, a truck driver for Ryder Truck Rental had collided with Selwyn A. Vernon’s vehicle.

Martin Stone, a truck driver for Ryder Truck Rental had collided with Selwyn A. Vernon’s vehicle. Mr. Stone was driving one of Ryder Truck Rentals trucks. The accident happened on a busy heavy traffic. According to reports, says a witness, Ms. Vernon’s car was in the right lane and the truck driven by Mr. Stone was in the middle lane. The right lane where Ms. Vernon was located was blocked by a double parked vehicle. She then tried to move on the center lane where Mr. Stone’s truck was to get around the double parked car when the traffic light turned red therefore stopping her in between the two lanes. Her car has about halfway in the center lane and half on the right lane. There was also another car in front of Ms. Vernon’s vehicle in the center lane. As soon as the traffic light turned green, Mr. Stone drove his truck forward and struck Ms. Vernon’s car. Ms. Vernon’s car was hit at the rear quarter panel on the driver's side, says a report. Ms. Vernon and the passenger in the front passenger seat both say that they were not moving when Mr. Stone hit them. The passenger on the rear passenger seat had a different testimony as she said that they had started moving as she sensed movement in the vehicle when the accident occurred. Mr. Stone was not aware that a collision had happened as he did not see Ms. Vernon’s car until after the accident.

Ms. Vernon asked for a summary judgment with regard to the issue of liability. The defendants logically opposed the motion, the defendants being Mr. Stone and Ryder Truck Rental. A rep found out that their claim was there is still a question as to whether Ms. Vernon’s vehicle was moving when the accident happened and if it was the cause of the accident. The court denied the motion of Ms. Vernon. The facts that both parties agreed on was that the traffic light was red and Ms. Vernon said that her vehicle was at least halfway in front of Mr. Stone’s truck. They also agree that the light was green when Mr. Stone drove forward and hit Ms. Vernon’s vehicle. At first glance, the case is already in favor of Ms. Vernon, but the issue if her car was moving and if that movement was a substantial factor in the accident still remains. A rep said, for the court to grant a summary judgment all pertinent questions should already be addressed and eliminated. If there is still an issue raised that needs to be answered or that needs to be examined, then the motion will be denied. There was one dissenting party in the judgment who had said that it could already be determined that the movement in Ms. Vernon’s car was not a substantial factor in the car accident as it was not moving fast when the accident occurred. If the car moved, it was not even able to get to one foot before it was hit. Cases like this are common in The Bronx and Brooklyn.

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April 1, 2012

Tammy Bennett was in a car accident on September 26, 2001

Tammy Bennett was in a car accidenton September 26, 2001. She was pregnant at that time. She was taken to a hospital in MacClenny, Florida, near where the incident occurred. Fetal testing was performed, and the medical staff decided to airlift her to St. Vincent's Hospital. Mrs. Bennett’s kidney failed, and they had to do a caesarean section to get the baby. According to a report, this was done by Dr. Long, her obstetrician. They started the operation at 1:16 p.m., and Tristan Bennett was born at 1:22 p.m. They noted a placental abruption. A placental abruption is a complication of pregnancy. It is when the placental lining has split from the mother’s uterus.

According to the hospital record, Tristan did not cry when she was born. Her breathing was slow, so they had to be resuscitated with a CPR mask face mask with free flowing oxygen. His Apgar score was six at one minute and eight at five minutes. This is considered as normal. The Apgar test is done to determine the health of a new born. It requires a check on the appearance, pulse, grimace, activity and respiration, said a rep. When the Cord Blood gas test was done, it showed a profound metabolic acidosis. This meant that there was something that was causing his kidney not to clear acidity in his body. At first, she was placed at the newborn nursery but was transferred to the special care nursery after about twenty-five minutes because she was having difficulty breathing and the metabolic acidosis.

The initial problems that she had were all resolved. She had other conditions in the week that followed her birth that were all relater to kidney and liver damage. There was no continuing treatment for the respiratory distress. There was no documented neurological damage. A pediatric neurologist was not consulted or requested to check the infant. From the information found by a study, seven days after, she suffered from a pulmonary hemorrhage. There were times that she was not breathing. She was spitting blood from her lungs through her mouth. Her heart rate was really slow. Her condition was unstable the whole day and showed signs of neurologic abnormalities at the end of the day. The following day, more possible seizures and central nervous system tremors were noted. They had electroencephalogram (EEG) and computerized tomography scan (CT) done. A pediatric neurologist was consulted. There was a possible neurological damage which included a multicystic encephalomalacia of the cortex. This is multiple sized cysts in the brain typically when infants suffer a lack of oxygen to the brain.

The Bennett’s filed a court case against William H. Long, his professional association, St. Vincent's Hospital and other parties. The trial court halted the procedure pending the decision if the injuries of the infant can be covered by the Neurological Injury Compensation Plan (NICA). The NICA plan is limited to those cases that are within its defined limits. The eligibility is determined in Division of Administrative Hearings. Their job is to determine, first if the claim is a birth-related injury. The second is “whether obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital.” The last is how much compensation should be given. The decision of the district court as it would be in Staten Island and Queens was that the Mr. and Mrs. Bennett are not eligible. This was appealed by them in with the Supreme Court.

In the deliberation of the Supreme Court, they said there were only two things to be settled the meaning of post delivery period and definition of birth-related injury. This is because Mrs. Bennett gave birth in the hospital with a participating physician. In the Bennett’s claim for NICA coverage, they claimed that the medical providers of Tristan after her birth committed numerous errors. They cited allegations like administering too much IV fluid and failing to test for serum electrolyte derangements until well after the infant had been delivered. The Administrative Law Judge, in review of the records and the testimony of physicians and other witnesses determined that the injury is not birth-related. A lawyer says that the court defines the “resuscitation in the immediate post delivery period” as the time immediately after the birth. If there is continuing and ongoing attempts to resuscitate, then it is only logical to see that the time until they are able to fully revive as part of the post-delivery period. If the infant is placed in a Cardiopulmonary bypass, the post-delivery period is already stopped. Cardiopulmonary bypass is the one that regulates the circulation of oxygen in the blood as well as the flow of the blood itself in the body. The time when the cause for the injury happened in very crucial for their determination for eligibility as it is specified by their rules. One of the reasons they rejected eligibility is that Tristan responded to treatment. The first seven days, he was okay and his vitals were normal. There were no problems neurologically. They also considered how the infant was born. The doctors had to do a caesarean section, so the oxygen deprivation that caused the neurological damage was not in the while delivering that baby.

In the conclusion of the court that for the injury to be considered as birth-related neurological injury caused by oxygen deprivation had to occur during labor, delivery or the period immediate after delivery. A source says it does not include the extended period when a baby was delivered in a condition that is considered as life threatening. This is unless there was a continuous effort to resuscitate. The decision arrived at by the Administrative Law Judge, and the Supreme Court was the same. The infant is eligible for the NICA plan. There is one judge who dissented saying that the rule does not prevent claims when the neurological damage shows at a later time. In this case, it could have been argued that the effect only showed seven days after even if the cause was in birth. The judge also says that the provision should be seen on a case by case basis. It should not be looked at as comprehensive or all encompassing.

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March 25, 2012

New York City entered into a contract with Trocom Construction Corp

New York City entered into a contract with Trocom Construction Corp. for them to do reconstruction work for Henry Hudson Parkway. The contract included a provision for Trocom Construction Corp. to cover any claim against the State that is from Trocom Construction Corp.’s negligence or failure to meet the terms or the law. The city granted Trocom Construction Corp. permission to restrict traffic on Henry Hudson Parkway to do their work. On the southbound Parkway from West 125th Street to West 100th Street they were allowed to impede traffic at certain hours, and at night when the work was being done. A source said it was limited to right bound lane. The site was required to be well lit. About six months after it was changed to include the right and center lanes but only from one in the morning to six thirty in the morning.

They started to work a few days after the permission was changed. They started setting up a catch-basin on the right lane. The work was indicated by barrels, and they had placed a truck with a flashing arrow board. The barrels were placed from the start of the lane to the truck and up until the end of the construction area. Inside the closed lane was an air compressor.

The same that they started the construction, Richie Vasquez, Rafael Costanza, Osvaldo Rolon and Robert Coello were driving on the southbound lane at around three twenty in the morning. Mr. Coello said that they were travelling at around 50-55 miles per hour, says a report. The speed limit in that road was 50 miles per hour. Another vehicle was coming up fast behind them, and they sped to about 60 miles per hour and swerved to the left fearing that they may get hit. He hit the left curb and lost control of the car. He said that the car spun, and he let go of the steering wheel and did not try the break. The vehicle turned onto the construction zone and hit the air compressor then the guard rail. The car went airborne and landed in the Hudson River. Mr. Rolon died of spinal injuries, and the others were injured.

Richie Vasquez, Rafael Costanza and Osvaldo Rolon represented, filed a case against Robert Coello, John Coello as the owner of the vehicle, Trocom Construction Corp., Anthony Santoro and Joseph Travato, who are employees of Trocom and the City of New York. Trocom Construction Corp. and the City of New York filed a motion for summary judgment within two days of each other. Trocom contested their inclusion as they had properly marked the construction area with the barrels and all along the site, there were signs. The construction zone was also well lit. Mr. Coello, the driver, saying that he did not see the construction up until they were swerving was contested by the statement of Mr. Vasquez, who was in the front passenger seatsaid he tried to get the driver’s attention to the construction site but did not notice. A source mentioned for the motion of the city, they said that the guard rails were not defective. They showed that it was properly made and followed to support the claim of Trocom about the area being well marked.

The court does not typically decide on a summary judgment with regard to negligence, according to a spokesman. The exception is when the party expressly shows that they are not negligent in what had happened in the accident. In this case, the court’s decision was to dismiss the case against Trocom and the City of New York and Westchester County. They did not cause the accident to happen but was just incidental to the happening. Spinal cord injuries can often be fatal.

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March 20, 2012

This is a case of a vehicular accident which has resulted in fatality

This is a case of a vehicular accident which has resulted in spinal chordfatality. According to a source, the accident happened on October 30, 2004. At approximately noon of that unfortunate day, Mr. Clayton Sprague, a driver employed by C&J Energy Savers was driving along Jerusalem Ave. He was on his way to deliver goods to one of C&J’s customers. Mr. Sprague was driving a 1987 Ford Diesel tanker. According to investigation, the tanker had a approximate load capacity of 33,000 pounds when fully loaded. My. Sprague’s load at that time was only 2,740 pounds which was within the allowable weight of the tanker. It was also found out during the investigation that Mr. Sprague was driving well within the speed limit because he did not have a deadline or specific delivery time. It was also noted that during his travel along Jerusalem Ave., he stayed on the right lane the entire time.

Still according to reports that reached the police, as Sprague was approaching the red light at the intersection, he slowed down and he had no problems with his breaks. He proceeded with caution until he passed by A. Holly Nursing Home when he noticed two cars travelling along side each other on the east bound lanes of Jerusalem Ave. He did not notice either car signalling to make either a right or left turn. He also did not notice that either car had its headlights on which may indicate a problem. He noticed later on that Maurice Minor’s (the victim) car continued in the left lane but getting dangerously close to the tanker. When Minor’s car was only about 10 feet away from the tanker, it suddenly shifted lanes and went directly westbound in front of the tanker.

Based on the findings of a lawyer who practices in Nassau and Suffolk, Sprague immediately applied his breaks but because of the proximity of Minor’s car to the tanker, there was nothing much Sprague could’ve done. The tanker hit the Minor’s car sending it about 40 to 50 feet away. It was very fortunate that it both Minor’s car and the tanker did not hit anything else in the process.

When Sprague realize what happened he immediately ran out to check on Minor’s condition. It was very obvious at this point that there was steam coming out of Minor’s car. Sprague went to the driver’s seat and although the car window was open, he along with a man from a nearby fruit Stand who also tried to help couldn’t open the door. There was also gas leaking from Minor’s car because of the impact. As both men where trying to open Minor’s car door, someone shouted to get away from the car because it was about to catch fire. In no time at all it did.

Based on the evidences presented by both sides, it was later found out by a reporter that Sprague had sufficient proof that he was operating his vehicle responsibly and that based on further investigation by automobile accident reconstruction and investigation detectives. They also established that Sprague passed the intoxication test which is a standard procedure in accidents with fatality from spinal injuries. It was also established by the detectives that because of the speed Minor was going and the wet road, Minor was unable to control her driving.

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March 16, 2012

This is an accident with claims on injuries sustained by the victim

This is an accident with claims on spinal cord injuries sustained by the victim, according to findings that were forwarded to an official . The amount in question was a subject of a lengthy discussion in the court by the jury because it was not an easy decision. This is especially true when a person has lost a part of his body as a result of an accident.

This is a very unfortunate event that happened to the victim, Robert Stone on April 3, 1977 at approximately 12:50 in the afternoon. Stone had stopped by Merit Service Station for gas. It was a busy day and aside from Stone’s vehicle, there were eight more vehicles waiting to be serviced at that time. Mr. Tanvejsilp was an employee of Merit Service Station at that time and was the one who serviced Stone’s car. Tanvejsilp had put the service station on automatic and returned to Stone’s car, went to another vehicle and returned to Stone’s car when he heard the “click” sound indicating that it had already been filled-up. Stone paid with credit card and after his duty was finished, he went on to another car.

According to the testimony of Stone, after his car was serviced he went to check if the gas cap was properly placed back. He was bent over, checking the gas cap when the car driven by Kerry Williams hit the rear end of Stone’s car resulting to injuries by Stone, still according to the doctor. It was also further testified by Stone that he did not see Williams’ car anywhere near prior to the accident nor did he hear anything else that might indicate that there was a car approaching him.

Because of the accident, according to medical findings that reached a source, the sum of $200,000 was initially allotted to Stone by the jury. Stone suffered total loss of the use of his left hand. He had lost his middle finger despite efforts to save it by surgeons. It was already severely damaged and there was nothing more to do than to remove it permanently.

Also because of the accident, Merit Service Station was also questioned in the process. It was discussed how Merit lacked proper precautionary signs that would create a more disciplined traffic inside the service station. It was also noted that there was perhaps negligence on the part of Merit’s employee, Tanvejsilp. As for the part of Williams’ he admitted that accelator of his car got stuck. As a result, he wasn’t able to control his vehicle when it backed up all the way to Stone’s parked car. Accidents like this one are often reported in The Bronx and Brooklyn.

According to a report, the jury went into a lengthy discussion considering the sum that would be awarded to Stone because of his already mutilated left hand because of the accident. It was being determined whether a $200,000 was too much for such a case. He also suffered spinal injury.

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March 13, 2012

Daniel Augustin was the owner of the vehicle involved and the one who also filed the complaint.

According to a report, this is a case of car accident resulting in spinal injuryand to total loss and insurance claims that resulted in a long argument in court because of technicalities about the dates and other things as well. Daniel Augustin was the owner of the vehicle involved and the one who also filed the complaint. Gilot Insurance and Colonial Penn Insurance Companies are the insurers being questioned by the court regarding Augustin’s claims.

In June of 1989, Augustin purchased a 1984 320-I BMW which he applied for a comprehensive car insurance through Gilot Insurance Company. But because it will take time before Augustin could get the title for his car, Gilot advised him to purchase first a Liability Car Insurance which will protect him for bodily injuries which may occur during an accident while waiting for the comprehensive insurance. Gilot promptly prepared the application in behalf of Augustin since this is permissible under the law. In return, New York Automobile Insurance Plan assigned an insurer to Augustin which turned out to be Colonial Penn Insurance Company. Penn consequesntly insured Augustin’s car from June 10, 1989 to June 10, 1990.

Still according to the facts, Augustin returned to Gilot on June 23, 1989 to present the title for his car and to change his liability insurance to a comprehensive insurance plan. Gilot prepared and filled out the forms necessary for the change and mailed it to Penn the following day by regular mail. Augustin also paid the first premium through Gilot who said and testified that Penn authorized it to receive the premium payment on Penn’s behalf.

Unfortunately, on 28 June 1989 Augustin was involved in a car accident which resulted in spinal injury and the total loss of his car. He made the necessary reports including an insurance claim to Penn since he knew that he had already change his insurance coverage. But based on reports that reached a reporter, Augustin was surprised to learn that Penn had refused to acknowledge his insurance claim after Gilot had prepared the necessary papers for the claim.

According to Augustin, Penn had contacted him several times after the accident through correspondences that made everything more confusing for him. At one time, July 25, 1989 Penn had brought the issue of suspending its comprehensive insurance which took effect on June 30 because Augustin failed to bring his car for inspection on July 6 and July 25, being fully aware that Augutin’s car was involved in a car accident earlier. Penn also questioned the date Gilot mailed the forms for the change in Augustin’s insurance plan. Arguments about whether the premium payment made by Augustin through Gilot for the comprehensive insurance was legal and binding or not was also brought to the court’s attention.

According to results that reached a witness, the premium paid by Augustin was legal and binding and enough to make Penn liable to pay the insurance coverage of Augustin. It was also established that Gilot had not neglected its obligation to both Augustin and Penn. Penn was asked by the court to settle all claims by Augustin. It is also tasked to properly appraise the value of Augustin’s car for proper payment and or reimbursement. Courts in New York City and Westchester are familiar with cases like this one.

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March 3, 2012

The accident happened when the bus hit the driver’s side door

According to reports gathered by a reporter, accident victims Charlina along with her two children Joyal and Royal Grandison were passengers on a Metropolitan Suburban Bus driven by Peter Smith. According to the accopunts of both Charlina and Smith, the accident happened around 2:50 in the afternoon of September 27, 2004 at the intersection of Old Country Road and County Seat Drive, in Mineola, New York. The accident happened when the bus hit the driver’s side door of another vehicle owned and driven by Ranjit Singh.

Still according to the reports, Singh told the court that he parked his car along Old County Road. About 30 seconds after he parked his car, he opened his door to get out. Unfortunately, even though he did not open his car door any wider than necessary (can only fit one man to go out) his car door was hit by Smith who was driving the Metropolitan Bus at that time where Charlina and her two kids where passengers. Singh also said that he did see the bus approaching that is why he tried to get out of his vehicle at the time he did. But he also said that he opened his car door with caution, opening it only wide enough for him to get out.

According to the testimony of Smith, he did not feel any impact as a result of the collision between the side of the bus and Singh’s car door. He only saw the accident when he had already passed Singh’s car to see that their vehicles indeed made contact. Smith also said that he was only travelling about 5-10 miles per hour at the time of the accident.

On the other hand, Charlina testified that upon collision she heard a boom but did not feel the impact of the collision between the bus and Singh’s car door. But she also said that she and her children were thrown from the rear passenger seats of the bus as a result of the collision. She also said that her right hand hit a pole inside the bus also as a result of the collision. Police were called to the scene and the Charlina and her kids were brought to the nearest hospital for some diagnosis. Spinal injuries were apparent.

According to a doctor, Charlina and her children where checked but were also sent home on the same day without admission to the hospital. Charlina later claimed that she felt nauseated and dizzy and was again brought to the hospital. After further examination, it was established by extensive medical diagnosis that the victims did not sustain any serious injuries resulting from the accident.

Also According to a doctor, it was found out by the court that Smith was not found to have been negligent in driving the Metropolitan Bus and that he was not at fault in the said accident. It was also later found out that Charlina and her children did not sustain any serious and damaging spinal injuries as a result of the accident thereby releasing Singh of any obligation to pay the victims outside of the insurance claims. Accidents like this one also are reported in Queens and Staten Island.

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January 10, 2012

Four Major Types of Thoracic Spine Injuries Experienced

The thoracic spine is the upper back and is the most stable part of the spine. It is the longest section of the spine and because it has the support of the ribcage and ribs it is extremely well protected. When injuries to the thoracic spine do occur, they are caused by motor accidents, sport accidents, or violence. Most of the damage to the thoracic spine occurs in the bottom half of the thoracic spine, a doctor said.

There are four major types of thoracic spine injuries being a compression, burst, flexion-distraction, and fracture-dislocation. Of the four types, a compression spinal injury is the most common fracture in the thoracic spine. This injury occurs when the upper back is curved forward or sideways when the accident or violence occurs. When the back is bent forward, the front or side of the vertebrae is crushed in the impact. A compression injury is also called a wedge fracture, a doctor mentioned.

A burst fracture is similar to a compression fracture. However, the main difference is that the entire vertebra is crushed instead of a small portion of it. The vertebra is evenly crushed by the trauma. When a burst injury occurs, the vertebra is pushed into the spinal cord causing loss of motor, sensory, and reflex functions. It is rare for a burst fracture to occur because of the curve of the spine, but they do happen. The most common incident that causes a burst or compressed fracture is when someone falls from height and lands on their buttock or feet, a report stated.

A flexion-distraction fracture occurs when the vertebra is separated. Hyperflexion causes the injury. When a limb or part of the body is stretched beyond its normal limit, hyperflexion occurs. Just like burst fractures, a flexion-distraction fracture is uncommon but do occur. The most common incident is when a seat belt is too tight and worn too high. If no shoulder harness is used, the injury transpires, a doctor affirmed.

The last type of thoracic spine injury causes spine cord injuries. When spinal fracture-dislocations occur, adjacent vertebrae are displaced in the upper back. The only cause of this injury has to be a high-energy trauma. The dislocated vertebrae are instable and can cause paralysis. Ninety percent of individuals in Nassau and Suffolk with this type of injury above the T10 level have paralysis in their lower extremis and 60% of individuals with the injury below the T10 level usually have paralysis.

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December 3, 2011

Spine Injury doesn’t keep woman from dancing

A 28-year-old woman suffered a terrible spinal cord injury in a car accident in 2008, breaking one of her vertebra and destroying the nerves to her spinal cord. Despite the fact that she has no sensation from her hips down, she still intends to walk down the aisle, when she gets married in April 2011.

She and her fiancée practice their wedding dance at the Detroit Medical Center’s Rehabilitation Institute of Michigan. The woman has been going there three times a week for two years. At first, she went to become stronger and regain her independence, but since her fiancée proposed to her, her goal is now to walk down the aisle even with a spinal cord injury.

“I wasn’t going to let this wheelchair stop me,” she told a friend.
“I always saw myself doing everything the traditional way. I wanted to get married and I want to walk down the aisle… that nice walk down the aisle. I couldn’t see myself rolling down the aisle.”

With the assistance of her father, her younger brother, and titanium steel braces, she intends to walk the 40-foot aisle in her full wedding dress when she gets married. She is certain it will be easy – at rehab, she can stay on her feet for three hours at a time.

Her insurance and that of the driver that hit her van pays for her rehabilitation, but not everyone is so fortunate. In Brooklyn and The Bronx and all over you must have insurance if you drive a vehicle.

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November 25, 2011

Legislation to Include Traffic Tickets to Cure Paralysis

Legislation has been introduced in the California legislature that seeks to impose a $3 fine onto every ticket that is issued in California for reckless driving. Assembly Bill 190, as the legislation has been titled, seeks to reestablish the goal of another California law that funded spinal cord paralysis research. That law was referred to as “Roman’s Law.”

Roman’s Law was named after the college football player who was involved in an accident while playing college football in 1994, in which he was paralyzed, discovered a person close to the scene. His father, Don C. Reed, worked hard to establish the Roman Reed Spinal Cord Injury Research Center and was a citizen-sponsor for the Roman’s Law legislation. The laws official name was the Roman Reed Spinal Cord Injury Research Act of 1999, Assembly Bill 750.
Roman’s Law was one of the few pieces of legislation that has passed the legislature that almost everyone, republican and democrat alike actually agreed on and supported. Former governor Arnold Schwarzenegger was also a supporter of the bill. The research the bill has been attributed with include stem cell, the Geron trials, the use of an “Avatar” helmet where the wearer can move a computer cursor across a computer screen by using their thoughts, and many others.

Unfortunately, the hard economic times forced the California legislature to drop the funding for Roman’s Law. This was not an easy decision, as the affects of the law were all deemed positive and the resulting inflow of both cash and academic resources was a boon to parts of the California economy. The program was a real success at the time. Even as lawmakers were defunding the program, supporters were told privately not to give up and to find a way to keep it funded.

Supporters of the program believe they may have found a way to keep the program funded and the research ongoing. It seems they may have taken notice of what a few states have already established, that is to fund the spinal cord injury research program by adding a fee onto traffic citations. Seven states are already using this approach to fund this type of research and the supporters of this bill seek to bring the total to eight states. They surmise that fines are levied to traffic violators in order to pay for the negative effects of their deeds. Suffolk and Nassau counties are considering these steps.

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October 14, 2011

Drunk driver kills one and paralyzes another

There is no doubt in the world that drinking and driving is not a good combination. In this accident case, a man driving while under the influence of alcohol, was involved in a deadly crash that killed his passenger and severely injured a woman on her way home from work. The injured woman was paralyzed from the waist down as a result of the accident, indicated the NY Spinal Injury Lawyer.
The driver was charged with not only driving under the influence, but aggravated assault by a vehicle and homicide by vehicle. He had been drinking at a tavern just before the crash. Despite being drunk, he thought he could drive. The man ran a red light doing 95 mph and accelerating, when he slammed into another pickup. His passenger wasn’t killed instantly, but instead, died a month later from his injuries.
The other driver involved in this horrific wreck was a 911 dispatcher on her way home from work. Her dispatch center got the call about her accident and subsequent injuries, which included severe spinal cord injury, broken legs, broken ankles and a broken back. Blood alcohol tests run on the driver showed he was 0.15%, reported the New York Spinal Injury Lawyer. The legal limit in his state was 0.08, the same as Staten Island and Westchester County.
When you hear about cases like this, you just want to shake your head. How can anyone think that being drunk and driving like this man did, is safe? Obviously, he was not thinking, but stunting instead, to either be smart or to try and prove he could still drive, despite having had way too much to drink.
There but for the stupidity and negligence of a drunk driver, goes the life of a 36-year-old woman who was just getting off work and wanted to go home at the end of a long day. Her whole life has been completely turned upside down and she has no idea when she is able to go back to work, if at all, said the New York Spinal Injury Lawyer.

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October 11, 2011

Booster seats are crucial for young children

Children don’t know enough to be able to tell their parents or other adults taking care of them what they need in terms of safety in a vehicle. They really need to be in booster seats and every state, with the exception of one, Florida, has booster seat laws, reported a New York Spinal Injury Lawyer.
Why are booster seats so important? They’re vitally important because without them, your child could sustain internal bleeding, spinal cord damage and even death, if you are involved in a car accident and your child is not in a booster seat. Florida as well as Nassau and Suffolk Counties right now says parents only have to use a seat belt when their kids get to be 4-years old.
The problem with a seat belt is that it tends to lock down and cut a small child’s abdomen and neck, typically resulting in a broken neck, head injuries, brain injuries, bleeding from major arteries and paralysis. In other words, wearing a seat belt when you are only four years old is not safe and can be deadly, commented the authorities.
In fact, the statistics reveal that a youngster is four times as likely to sustain head and neck injuries and three times as likely to suffer severe internal injuries when wearing a seat belt, as opposed to being in a booster seat. Why take chances with your child’s life?
If the accident was the result of the negligence of another driver, you may have a good personal injury case to be able to file for compensation for your child’s injuries, indicated the New York Spinal Injury Lawyer. Even with booster seats, accidents can and do happen and if the seat is in any way defective, this will increase the chances your child may be harmed.
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September 8, 2011

As with many injuries, spinal injuries can come with complications

As with many injuries, spinal injuries can come with complications, according to New York Spinal Injury Lawyers. Specific ones include neurological dysfunction, hunchback, herniated discs, and bones that heal out of alignment. When high-impact force was involved, such as in a car accident, there can also be cuts or bruises on the heart or lungs. Spinal cord injuries come with even more possible complications, like sores caused due to prolonged inability to move. Even chronic constipation or inability to void the bladder may become an issue, requiring treatment in order to avoid potentially dangerous consequences. Hospitals in New York City and Queens are always on the lookout for these complications in car accidents.
Certain spinal cord injuries can cause such severe dysfunction to the nervous system that hypertension and other cardiovascular conditions result, New York Spinal Injury Lawyers have discovered. Such injuries occur in 48% to 90% of all individuals injured in specific portions of the spine, or by any painful or irritating stimulus below that portion of the spine.
Complications after surgery may include difficulties breathing, or cardiac complications, like heart attack, NYC Spinal Injury Lawyers have learned. Anemia from severe blood loss, problems with blood coagulation and difficulties stemming from fluid imbalances are all known to occur sometimes after spinal surgery. Urinary tract infections can also result from spinal surgery, and these infections can even spread to the spin and any hardware implanted there to support the area. There are a great many things that physicians need to keep an eye out for when attending to a victim of spine or spinal cord injury, and all of them can have a large impact on a patient’s life for a long time to come.

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July 27, 2011

Walls and Rain Falling

Near the end of April, a 38-year-old engineer died of a spinal injury when a part of the Freedom Park wall collapsed on his car. He had been sitting in the car talking on his phone. He left behind a wife and a 2-year-old daughter.
The mechanical engineer by training was a partner in a City firm he and his friend started seven years ago – SP Engineers and Contractors. The victim’s friend and business partner said it was “an unbearable loss” to loss his friend of more than two decades.
The victim had been looking for a parking spot and had been unable to find one. His friend blames the rain on the difficulty in finding a spot. He had been on his way to meet his business partner and two other friends at a hotel, as they did almost every day. When he didn’t show, his partner tried to call him, but didn’t get an answer. When they heard the wall had fallen, all three who were to meet him rushed to the scene and found him in his car crushed under the debris.
A New York Spinal Injury Attorney recalls the tragic incident and says that in such cases it is probably possible to claim compensation of some type from the parties who built the wall if it can be proven that negligence or shoddy craftsmanship was the cause of the collapse.
The NY Spinal Injury Attorney said that it was still unclear to what extent the rain had on the wall collapse, if any. Similar car accidents have been reported in both Manhattan and Long Island.
The rain did cause an electrocution in the City that same weekend. A 28-year-old IT professional was killed on SJP Road when he came in contact with a live wire that had fallen on the ground during the torrential rain. The man was crossing the road, wading through a puddle of water. He probably slipped and his hand touched one of the high voltage wires, his cousin reported. The post-graduate in mathematics, also had an MCA degree. He leaves behind his parents and two younger siblings.

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June 23, 2011

Record Brain and Spinal Injury Payout Goes to 9-year-old Boy

A 9-year-old boy who was accidentally run over by his own father on a family day out was recently awarded compensation worth £8.1 million today. This is a record-setting amount for a court-approved award for a spinal injury, a New York Spinal Injury Lawyer says.
The boy will need lifelong care after suffering severe spinal and brain injuries in March of 2002 when he was just two-and-a-half years old.
The boy’s father did not see him when he reversed the car at Mead Open Farm, near Leighton Buzzard, Bedfordshire. The father drove over his son.
Currently, the child lives in Milton Keynes with his mother, who has remarried, his twin brother, and his 7-year-old twin siblings.
The boy’s legal team told the presiding Justice at the High Court in London that the boy’s father’s insurers, who earlier admitted liability, had made a payment of £1.7 million to enable the family to buy a home suitable for the special needs of the child. The legal counsel also provided clear evidence of the child’s current needs. A Manhattan Spinal Injury Attorney found that the settlement that was reached entails a £2.5 million lump sum payment in addition to annual payments of £220,000.
The judge said, ““I am amazed and admiring of the care – not only the physical care but the thought and consideration of the family – which has gone into [the boy’s] upbringing,” she said. “It is quite clear that, although he is in many ways a delightful boy, he can be difficult on occasions, and I have no doubt that considerable patience, forbearance and hard work is required to deal with that.
“I wish him, and the family as a whole, well for the future and, while this order cannot possibly put him back to the circumstances in which he otherwise would have been, I hope it will play its part in enabling him to live to his full potential and assist the family in the difficult task of providing for his future.”

Car accidents cause many spinal injuries in Brooklyn and The Bronx. Each case is different and needs to be looked into closely.
The boy’s mother is happy that the case is over and that the judge saw to it that her son would be cared for during the rest of his life – however long that may be.

Continue reading "Record Brain and Spinal Injury Payout Goes to 9-year-old Boy" »

June 19, 2011

26-year-old Mother a Victim of Hit-and-Run

A 26-year-old listed the toll her body has paid at the hands of a drunk driver: impaired memory, multiple pelvis fractures, knee fracture, knee replacement, deep head and facial gashes, broken and missing teeth, spinal injury, seven facial surgeries, three of which were oral, constant pain, post-traumatic stress disorder, depression, and anxiety.
The young hospital nursing assistant was walking across Atwells Avenue on Federal Hill one and a half years ago after a celebratory night out with her father when she was run down.
“One careless mistake … changed my life forever,” the girl laments.
One of the worst consequences of the attack was that her little boy called her horribly disfigured body and face that of “a scary monster.”
The 25-year-old former university student who ran her over, pleaded no contest to driving while intoxicated with serious personal injury resulting and leaving the scene of an auto accident with serious personal injury resulting. A NYC Spinal Injury Attorney said the pleading was part of a plea bargain that was apparently agreed to by the victim.
The judge imposed a prison term of 10 years, with 3 years to serve in the minimum-security section of the Adult Correctional Institutions. The magistrate recommended work release followed by 3 years of home confinement. The balance of the term is to then be suspended with probation. He is also to lose his license to drive for two years beginning with the completion of home confinement, undergo mandatory drug and alcohol counseling, and pay a $1,000 fine.
The 26-year-old mother was hit shortly before 1 a.m. in the vicinity of the Blue Grotto restaurant. She was thrown into the air, carried several hundred feet on the good and was left unconscious in the street in a puddle of her blood.
She had just finished dining out with her father and was on her way to get her car when the accident happened.

In Manhattan and Long Island, car accidents cause many different injuries, many of which are spine related.
The driver left the scene, but two witnesses followed him in their car and helped the police locate him by staying in contact with them via their cell phone. He was stopped and arrested; his blood-alcohol level was twice the legal limit.
When the young man faced the young woman in the courtroom, he apologized and hoped that someday he could have her forgiveness. A NYC Spinal Injury Attorney said she was surrounded by about 16 relatives and friends at the trial.

Continue reading "26-year-old Mother a Victim of Hit-and-Run" »

June 7, 2011

Police Officer Injured by Drunk Driver Recovering

A police officer from Springfield, Ohio, had reason to be upbeat earlier this month when his doctors reported that he now has movement in both of his legs. Earlier it was feared he might never walk again.
The officer was hit by a pickup truck while on duty at the end of March. He had been in the middle of evidence collection for the Summit County Sheriff's Office along Arlington Road. A New York Spinal Injury Lawyer said the 34-year-old driver was drunk and subsequently charged with his fourth DUI.
Speaking to reporters from Summa Akron City Hospital, the injured officer said his faith has helped him hold no grudge against the driver, who is still in custody. He called the incident "terrible," but added that "we all make mistakes. What he did was a criminal offense. He'll be dealt with through the justice system, through the courts, and I'm sure he wouldn't do it again." Many car accident are the cause of spinal injuries in Long Island and Manhattan.
The man went on to comment, "I'm not a vindictive person. If I'm going to heal properly, if I'm going to focus on getting better and on walking and on doing the things I need to do either to get back to work or in a situation where I can do something else with my life and still be productive, I have to forgive him." He is currently working as hard as he can to recover from his injuries so he can walk again.
One of the specialists involved in his care reported that the initial diagnosis was dire. In fact, the officer's wife had reported at an earlier news conference that doctors had given her husband only a very small chance of ever taking another step.
Thankfully, though, his spinal cord injuries don’t seem to be as severe as that initial diagnosis revealed. "His ability to walk is a realistic goal," the doctors can now say.
The dedicated and hard worker police officer received an award from the Springfield Police Chief. The certificate was from the Summit County Prosecutor’s office and honored him as their “Top Cop.”



Continue reading "Police Officer Injured by Drunk Driver Recovering" »