Articles Posted in Westchester County

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

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

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

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

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

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

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

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

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

The Court concluded that the woman failed to raise an issue of material fact as to the seriousness of her spinal injury. The case is dismissed except as to the claim for negligence and as to the claim of injury which resulted in temporary disability for 90 days after the accident.
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A forty-seven year old Staten Island warehouseman for a closet manufacturing company was operating a forklift at the workplace. This was his regular duty for the past three and a half years of employment there. Also as part of his regular job, he lifted boxes to and from the stocks. On May 16, 1996, the warehouseman was unloading a pallet of boxes. A box fell from the pile and hit him on the back of the head. He experienced pain and the weight and sudden impact of the box caused him to fall on his knee. After that incident at work, he began to experience backand neck pain.

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

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

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

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

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

The Court takes note of the fact that the warehouseman was unaware of the preexisting medical condition and he has not experienced any pain because of it. The pain he suffered and which debilitated him began only after the accident at the workplace. The preexisting medical condition of spinal stenosis was aggravated or made worse by the accident. The accident was compensable.
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A Brooklyn bagel shop clerk met an accident while driving near the corner of West Merrick and Rockaway Avenue: her car collided with another car on August 21, 2007. As a result of the accident, the bagel shop clerk missed two weeks of work. The pain she felt prevented her from lifting baskets of bagels as she had been doing previous to the accident. She was unable to stand behind the counter for long periods of time as she had been doing before the accident. She held down another part-time job at a clam bar and was also enrolled as a full time college student. She missed two weeks of classes after the accident and she had to stop working at the clam bar.

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

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

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

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

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

The court denied the motion for summary judgment, ruling that the bagel shop clerk has succeeded in proving that there are issues of material fact that have to be determined by a jury at trial on the nature and extent of her spinal injury and of the disability she has suffered.
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Brooklyn Claimant sustained injuries arising out of and in the course of her employment on two occasions. First was in December 1988, when claimant injured her neck, back, shoulders, knee and left elbow, and the second was in September 1989, after claimant had been released to return to full-duty work, when claimant injured her fingers. Since her first injuries, claimant has been treated by a doctor, doctor-one, who is a board-certified orthopedic surgeon. Doctor-one diagnosed claimant as suffering from cervical and lumbar spondylosis or arthritis.

According to doctor-one, claimant had suffered from a pre-existing arthritic condition which was exacerbated by her work related injury; that, because of claimant’s arthritis, she was not going to get better, that is, she would continue to experience good periods and bad periods, as she had for some time; that there was little that he could offer claimant in the way of new treatment. Doctor-one prescribed physical therapy which had included traction, heat, ultrasound and electrical stimulation for some time, for temporary relief of claimant’s symptoms; and recommended that claimant continue to receive physical therapy as needed. However, according to the claimant, the physical therapy prescribed by doctor-one provided only temporary relief from her symptoms. Thus, she wanted to be treated by doctor-two, a chiropractor, by reason of the fact that her husband had been treated successfully by the said doctor, and she felt that doctor-two could achieve similar results with her. Claimant then filed a claim seeking authorization for a chiropractic treatment to be conducted by doctor-two.
Consequently, doctor-two was called to testify. According to doctor-two who is a chiropractic physician, claimant is suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, doctor-two concluded that claimant was a candidate for chiropractic therapy which basically consists of adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints; that he would use traction in the low back, exercises and some electrical stimulation. Doctor-two opined that chiropractic treatment would be beneficial to the claimant because the key thing is to get the vertebrae that are out of place, or the subluxated, back into their proper respective position and functioning again, and he saw nothing about claimant’s condition to suggest that it would be inappropriate to treat her in such a way.

Now, over the objection that he was unqualified to render such opinions, doctor-one states that he tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a Westchester chiropractor offers; and that he had had training in some forms of manipulation; that, within a reasonable degree of medical probability, while manipulation in the proper hands in the proper situation is beneficial, in claimant’s case manipulation might be harmful; that arthritic joints which would be placed through a motion that they would not normally be placed through in some respects would be like going through the trauma or the initial auto accident that the patient describes; that it could increase the symptoms; and that the treatments other than manipulation which were normally used in the practice of chiropractic were not different from those already available to claimant through physical therapy.

Thereafter, the judge of compensation claims concluded that doctor-two should not be authorized because based upon doctor-one’s testimony, manipulation would be inappropriate, given claimant’s condition; that, other than manipulation, claimant was already receiving essentially the same treatment that doctor-two recommended; and that claimant’s request was motivated by unrealistic expectations, because she believed that chiropractic treatment would result in a cure. The judge issued a worker’s compensation order denying the claimant’s request for authorization. Thus, claimant now seeks for a review of the order.

Here, claimant argues that the conclusions of the judge of compensation claims is not supported by competent substantial evidence because doctor-one, as an orthopedic surgeon, was not qualified to render opinions on the subject of the appropriateness of chiropractic treatment, thus, doctor-two’s testimony that chiropractic treatment was appropriate was not controverted. The court finds this bereft of merit.

Under the law, an employer is required to furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require. The terms “medically necessary” is defined as any service or supply used to identify or treat an illness or any personal injury which is appropriate to the patient’s diagnosis, consistent with the location of service and with the level of care provided; and the service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe. While it may well be true that, in a majority of cases, only a similar health care provider will possess the qualifications necessary to permit him or her to testify regarding whether a requested care or treatment is medically necessary, this is not the case herein. Under the Evidence Code, the determination of a witness’s qualifications to express an expert opinion is within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error. The court does not see why a different standard should be applied in workers’ compensation cases.
It is unquestionable that doctor-one, as an orthopedic surgeon, possesses the qualifications necessary to permit him to offer opinions regarding the effect of arthritis upon a person’s joints in general, and spine in particular. And, there can only be a little question regarding doctor-one’s qualifications to offer opinions as to the likely effect of unusual or abnormal movement of the spine upon one suffering from arthritis. Such opinions are clearly based upon his knowledge acquired as an orthopedic surgeon. The only real question presented is whether doctor-one possesses enough knowledge about chiropractic manipulation to be able to render an opinion as to the effect of such movement upon the spine of someone like claimant, who is suffering from arthritis. It must be noted that doctor-one tried to read a lot of chiropractic literature; that he was familiar with the general nature of treatment modalities that a chiropractor offers; and that he had had training in some forms of manipulation. The court believes that such testimony was sufficient to permit the judge of compensation claims to conclude that doctor-one knew enough about chiropractic manipulation to opine whether, from a medical standpoint, such movement of the spine would be likely to help or to harm claimant. In fact, the court fails to see any meaningful distinction between such testimony and testimony that, within a reasonable degree of medical probability, a particular type of unusual or abnormal movement, such as might occur during a fall or an auto accident, would be likely to cause a spinal injury, or a cervical or lumbar sprain or strain. Clearly, an orthopedic surgeon would be permitted to offer the latter opinions.

In sum, it is without a doubt that the record contains competent substantial evidence to sustain the finding of the judge of compensation claims that chiropractic manipulation would be inappropriate given the claimant’s arthritic condition. The court finds that the evidence is indeed sufficient to support the decision of the judge of compensation claims to deny the request to authorize doctor-two by reason of the fact that the requested chiropractic treatment was not medically necessary. Thus, the order appealed from must be affirmed.
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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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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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A complainant man, age 37, was admitted to a hospital, after having suffered a gunshot wound to his neck. He was treated by a general surgeon and a neurosurgeon. During the first few days of treatment, the Bronx general surgeon formed an opinion that the man would be a permanent paraplegic. The neurosurgeon was also of the opinion that the man’s spinal column had suffered such severe damage and that eventual spasms in his extremities would be inevitable. However, the neurosurgeon noted in the hospital records that the man apparently had a sensation to his feet.

Subsequently, while the man was in an intensive care unit, nurses at the hospital placed him on a special bed used to allow immobilized patients to be rotated to a vertical position. The nurse who was responsible for checking out the bed failed to check on the position of an essential bolt, and as the bed was rotated the man fell. There was conflict in the testimony as to injuries caused by the fall. The man claimed that he struck his back on a chair, while the nurse testified that she caught the man prior to the time he struck to anything. After the incident, the man was examined by another physician, who noted that the patient had not sustained any injury when a section of the bed had almost fallen down. The man testified, however, that his pain intensified after the fall and that it was only after the fall that he had begun to suffer spasms. The man was discharged from the hospital and after which, he was a patient in various other Westchester hospitals. He undergone several operations, but he remains paralyzed.
A pathologist testified as an expert witness for the man. It was his opinion that the fall striking the mid portion of the man’s back in the area through which the bullet had passed had caused some degree of neurological and spinal injury, which in turn caused additional injury to the wound site. Even if the pathologist could not assess any particular degree of aggravation caused to the already existing damage, he did testify that the man’s fall from the bed injured him to some additional degree.

For the opponent, the neurosurgeon testified that he had seen no medical changes in the man before or after which warranted any conclusion that any injury such as a fall occurring in the hospital had worsened his condition, but rather that all of the man’s problems were consistent with the original gunshot injury and inconsistent with any other damage.

Initially, the court rejected the hospital’s argument that the man’s evidence did not warrant submission of the case to the jury. But, the court finds competent substantial evidence from which the jury found that the man suffered additional injury resulting from the hospital’s negligence. The man testified that he had fallen out of bed and there were notes from one of the nurses indicating that after such fall he was unable to move his toes. Even the neurosurgeon acknowledged there had been some sensation in the man’s feet prior to the fall, but there was none there after it.

The hospital however filed an appeal from the decision entered awarding the man a total of $350,000. The thrust of the hospital’s contention is that the man was an irreversible paraplegic when he was admitted to the hospital, therefore, the fall he sustained as a result of the hospital’s alleged negligence did not aggravate his then existing injuries.
Consequently, the court affirms the decision of the trial court as to the hospital’s liability, but reverses and remand to the trial judge.
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The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the complainants as guardians and adoptive parents of a child, the sum of $26,849,849.06. DCF raises several issues on appeal that the Appellate Court affirms without comment. The Court of Appeals addresses only DCF’s argument that the complainants failed to prove a legitimate case of negligence. It affirmed the final judgment because the complainants presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the spinal injuries sustained by two-year-old child.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because the child’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. A Suffolk woman, who is the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. She testified that she was concerned that the mother did not show up to the hospital on the date of the child’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while the child was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed the investigator that the child did not appear very bonded to the mother. In her testimony, the investigator expressed concern because the child’s x-ray results showed a fractured clavicle, for which the mother had no explanation. The investigator also testified that the mother’s boyfriend was living with the mother and the child, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, the investigator, the mother, and the head of the child advocacy team (CAT) at the hospital met at the hospital on December 11, 2000. The head of CAT testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although the CAT head testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that the child is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing. The Westchester investigator admitted in her testimony that the CAT head advised her that a home study should be completed first before the child was returned to her home. The investigator also testified that after meeting with the CAT head, she suspected physical abuse.

The investigator then met with her DCF supervisor in Miami because she wanted to share with him her concerns about the child. They agreed that the Miami DCF office could not place a hold on the child because the Miami office lacked jurisdiction as the child was a resident of Lake Worth. They agreed that an out of town inquiry (OTI) was necessary and that the case should be transferred to the Lake Worth DCF office. The following day, the investigator received a phone call from a social worker at MCH. The investigator informed the social worker that the Miami DCF office would not place a hold on the child, that the child could be released to the mother, and that the Lake Worth DCF office would follow up. However, according to the investigator’s testimony, the social worker informed her that a hold was appropriate at that time because of all of the concerns regarding the child’s safety. The investigator testified that she shared these concerns with the social worker.

The investigator testified that the social worker then consulted with her supervisor at MCH, and both the social worker and her supervisor called the investigator again on December 12, 2000, which was the second phone call that day from the social worker to the investigator. The investigator testified that the social worker and her supervisor were very concerned with the child being released and that they would feel much more comfortable if they had the name and number of the protective investigator who would be following up on the case so that they could speak with that person. Ten minutes later, the investigator called the DCF office and was informed that before the case could be reassigned to another investigator, she would have to update the computer with all of the information concerning the case. While updating the computer, she received a third phone call from the social worker, who again sounded concerned. She testified that she had nothing new to tell the social worker because she was still in the process of updating the computer and that no investigator had been assigned to the case at that point. After completing the update, she called DCF in Lake Worth, informing them that the update had been completed, and she was given the name of the protective investigator in Lake Worth assigned to do the OTI. The investigator testified that she told the Lake Worth office that the case was urgent because there were many concerns about the mother’s ability to care for the child. She also testified that she then called the social worker and informed her that the case had been reassigned and gave her the name of the DCF protective investigator.

Thereafter, a DCF attorney advised the investigator that DCF must contact the father of the child’s half-sister in New Jersey, run criminal checks on the mother and boyfriend, staff the case with the Child Protection Team (CPT), and complete a home study before the child is sent home. The investigator testified that as of December 20, 2000, she did not contact the father in New Jersey nor did any other witness testify that this task was completed. The DCF investigator in the Lake Worth office testified that she conducted criminal background checks on the mother and boyfriend, which revealed no criminal records for either the mother or her boyfriend.

As for the CPT review, which is the process of reviewing records and assessing the child by medical professionals to determine abuse, the testimony at trial was that none was completed. The DCF supervisor testified that CPT did not do a complete investigation and that the child should not have gone home until CPT did their work. The CAT head also testified that he was not serving in any official capacity as part of a CPT. A DCF’s own retained expert testified that there was no CPT or equivalent review of the child’s medical records to look into the issue of abuse either before she left the hospital on December 15, 2000 or before the child sustained massive brain injuries on January 11, 2001. The DCF expert agreed that a CPT review of the child’s available charts and medical history would have shown that the child more likely than not was the victim of abusively-inflicted injuries. Furthermore, the expert agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that the child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse.

As for the home study, which is the review of the child’s living situation, the DCF investigator testified that she was never requested to do a home study nor was she told by DCF in Miami that a home study or CPT was required before the child could be sent home. She did go to the mother’s apartment on December 13, 2000 and noticed that there was no crib, toys, baby clothes, or any evidence of a child living there. However, she admitted that had she completed a home study, she would have spoken with people who were allegedly responsible for watching the child and most certainly the live-in boyfriend, but she never did.

Despite DCF’s failure to contact the father, to staff the case with a CPT team, and to conduct a home study, the child was released from the hospital on December 15, 2000. It is undisputed that on January 11, 2001, the mother’s boyfriend physically abused the child and caused her permanent and serious injuries. She sustained traumatic brain and spinal injury. Her brain damage prevents her from swallowing properly, and she has weakness in all of her extremities as well as a significant degree of cognitive delay. Furthermore, it is improbable that she will ever be able to walk independently, she will most likely need a feeding tube, and in one doctor’s opinion, she will never have the ability to have a meaningful two-way conversation due to the impact on her speech. The child also takes numerous medications and requires speech, occupational, and physical therapy five days a week. Her injuries will require her dependency on caregivers for the rest of her life.

The couple who adopted the child near the end of 2001, sued for negligence, alleging, that DCF negligently failed to adequately and reasonably investigate the matter involving the child and that DCF’s negligence was the proximate cause of the injuries sustained by the child. The jury reached a verdict for the couple and found DCF 75% responsible for causing the child’s catastrophic injuries, MCH 20% responsible, and the mother 5% responsible. Final judgment was entered against DCF for $26,849,849.06.

On appeal, DCF argues that the trial court erred in denying its motion for directed verdict because the couple failed to show that the alleged negligence of DCF was the legal cause of the injuries sustained by the child, and that any finding of causation could be based only on a stacking of inferences. According to DCF, the inferences that would need to be stacked to reach a finding of causation are that had DCF completed its investigations, DCF would have uncovered the boyfriend’s abuse of the child, that the discovery of abuse would have led to the child’s removal from the mother’s custody, and thus, prevented the abuse perpetrated by the boyfriend on January 11, 2001.

Concerning DCF’s argument that the complainants failed to establish that the alleged negligence was the legal or proximate cause of the child’s injuries, the issue of proximate cause is generally a question of fact concerned with whether and to what extent the accused party’s conduct foreseeably and substantially caused the specific injury that actually occurred.
After reviewing the record in a light most favorable to the complainant couple, the case was properly submitted to the jury as there is competent substantial evidence in the record to support a finding that DCF’s failure to adequately and reasonably investigate the matters involving the child foreseeably and substantially caused the injuries sustained by her.

Under the facts of the case, the jury could conclude that DCF’s inaction unreasonably exposed the child to physical abuse leading to traumatic brain and spinal injury requiring dependency on caregivers for the rest of her life. Furthermore, The DCF expert agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that the child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse. The evidence could lead a jury to reasonably conclude that it was foreseeable to DCF that if the child was released to her mother without further investigation, she could sustain more abuse.

The trial court did not err in denying DCF’s motion for directed verdict. The complainant couple made a legitimate case on the issue of legal causation, which issue was properly submitted to the jury. As the Supreme Court declared DCF is not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime. The primary duty of DCF is to immediately prevent any further harm to the child and that the relationship established between DCF and the abused child is a very special one.
Children are supposed to be protected from all forms of harm.
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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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