In order to pursue a negligence claim arising from a car accident, a plaintiff must have incurred a “basic economic loss” of more than $50,000 or have suffered a “serious injury” as defined by statute. New York Insurance Law § 5104. The definition of “serious injury” is set forth in New York Insurance Law § 5102(b) and lists several specific types of injuries, including fractures and disfigurement. The definition also includes a broader category for a non-permanent injury that keeps the person from performing “substantially all” of his or her regular daily activities for at least 90 of the 180 days immediately following the occurrence. Whether a plaintiff suffered a “serious injury” as defined under the statute is often a significant issue in automobile accident cases.
The Appellate Division recently considered the issue of serious injury in the case of Hazel v. Colon. The Supreme Court had denied the defendants’ motion for summary judgment for a failure to address the issue of a serious injury under the 90/180-day category.
The Appellate Division, however, found that the defendants not only had addressed the issue but also had actually made a prima facie showing that the plaintiff had not suffered that type of serious injury. The defendants had submitted evidence that the plaintiff’s injuries were not caused by the accident. The plaintiff’s medical records indicated she had pre-existing spinal injuries. The defendants’ orthopedic surgeon offered the opinion that the plaintiff’s knee injury was not caused by trauma but was instead degenerative.
The plaintiff’s orthopedic surgeon, however, had found her knee injury to be caused by trauma related to the motor vehicle accident. The defendants’ experts had referenced and relied upon the plaintiff’s surgeon’s post-operative report, so the plaintiff could also rely on that report. The Appellate Division found that there was a triable issue of fact as to this injury and affirmed the Supreme Court’s denial of the motion for summary judgment.
Often, issues related to a serious injury involve questions as to the extent of the plaintiff’s injuries. In this case, however, the primary issue was the causation of the injury. The defendants had sufficient evidence to make a prima facie showing for summary judgment, but the plaintiff also had sufficient evidence contradicting the defendants’ evidence to create a genuine issue of material fact.
Summary judgment is only appropriate when there is no triable issue of fact. If the parties have conflicting medical opinions regarding the cause of the injury, the issue should be left to the trier of fact to evaluate the weight and credibility of the evidence. Our New York automobile accident attorneys know the importance of obtaining and reviewing our clients’ medical records for evidence supporting a claim of a serious injury.
If you have been seriously injured in an automobile accident, call 1-877-313-7673. The Law Offices of Nicholas Rose, PLLC offers free consultations.
Hazel v. Colon, February 9, 2016, Supreme Court of the State of New York, Appellate Division, First Judicial Department
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