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….
When we hurt someone either intentional or not, it is our duty to make sure that we take the responsibility of our actions. We should also bear in mind that our rights end when someone else’s rights begin. If you want to know if an injury-related lawsuit claim against you is just or not, consult a NY Spinal Injury Attorney together with a NYC Medical Malpractice Lawyer. Stephen Bilkis and Associates can also offer a New York City Spine Injury Lawyers and New York Personal Injury Attorneys to handle your legal actions.