A New York automobile accident victim may only bring a negligence case against the other party if the victim suffered at least $50,000 in basic economic loss or a serious injury. The New York Insurance Law defines a serious injury to include certain specified injuries. A medically determined injury or impairment may also be a serious injury if it prevents the person from performing substantially all of his or her usual and customary daily activities for at least 90 of the 180 days immediately after the incident.
It is common for defendants in New York automobile accidents to seek summary judgment on the issue of serious injury, as in the case of Romero v. Konneh.
In this case, the plaintiff alleged that he sustained tears in the distal supraspinatus tendon and the anterior glenoid labrum of his right shoulder, requiring surgery. He also alleged that the accident resulted in three bulging discs. The court cited to case law holding that acute sprains or strains, torn tendons or ligaments, and bulging or herniated discs can all constitute evidence of a serious injury if there is objective, competent medical evidence showing the injury caused a significant physical limitation.
To succeed on summary judgment, the defendant must make a prima facie showing that the plaintiff did not sustain a serious injury. The defendant submitted a doctor’s report stating that the plaintiff had a full range of motion in his right shoulder, but the range of motion in his cervical spine was limited. The report also noted that the range of motion test is subjective and dependent upon the voluntary control of the person being tested. The court held that this report raised a triable issue of fact as to whether the cervical spine limitation was due to actual injuries.
Additionally, the doctor noted a finding of the bulging discs upon his review of the plaintiff’s MRI, but his diagnosis was a resolved strain of the cervical spine. The defendant’s radiologist noted in her report that the MRI showed no disc bulging or herniations. The court determined that these inconsistencies also raised a triable issue of fact.
The court pointed out that it did not have to consider the plaintiff’s opposing papers, since the defendants failed to meet the burden of showing the plaintiff had not sustained a serious injury. The court noted that the plaintiff had raised a triable issue of fact regarding whether he sustained the shoulder injuries he alleged and whether those injuries resulted in significant or permanent consequential limitation through another doctor’s report. The court noted that conflicts in expert medical opinions must be resolved by the trier of fact.
The court also considered the plaintiff’s gap in treatment. The plaintiff had explained the gap had occurred because he had exhausted his no-fault benefits, Medicaid would not pay for the treatment, and he could not afford to pay for it out of his own pocket. The court found that this explanation was sufficient to raise a triable issue of fact.
The court denied the defendant’s motion for summary judgment on the plaintiff’s claim that he sustained a serious injury based on the significant and permanent consequential limitation categories. The court did grant the motion with regard to the plaintiff’s claim for a serious injury based on 90/180. The court concluded that the plaintiff had failed to raise an issue of fact that he was unable to perform substantially all of his usual and customary daily activities for at least 90 of the 180 days immediately after the accident. The plaintiff had not been employed at the time of his injury. He testified that he was confined to bed for a week or two and confined to his home for an additional week. This confinement was not directed by a doctor, and he did not submit any competent, objective medical evidence to support a serious injury under this category.
The court therefore denied the motion in part and granted it in part. The plaintiff will get to proceed with his case and have the opportunity to recover compensation for his injuries.
Our New York car accident attorney knows the importance of evaluating and documenting the extent of an accident victim’s injuries. If you have been seriously injured in a car crash, a skilled accident attorney can help you.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
More Blog Entries:
No Summary Judgment for New York Defendant with Conflicting Evidence on Serious Injury, June 6, 2016, New York City Injury Lawyer Blog
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