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.
Claiming a right when it is due need not be burdensome. Our New York Spinal Injury Lawyers from Stephen Bilkis and Associates can assist you in establishing your rights. It has offices from New York Metropolitan area, including Corona, New York.