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.