Per Article 51 of New York Insurance Law, a plaintiff in a personal injury action arising out of negligence in the operation or use of a motor vehicles must show he or she has incurred a basic economic loss exceeding $50,000, or alternatively, must establish that he or she has sustained “serious injury.”
Per 5104(a), (b), a serious injury is one that results in:
- Significant disfigurement
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of a body organ or member
- Significant limitation of use of a body function or system
- Medically determined injury or impairment that is not permanent, but that substantially impacts a person’s ability to perform basic tasks for more than three months during the first six months following the incident.
In the recent case of Boone v. Elizabeth Taxi, Inc., before New York County Supreme Court, Appellate Division, First Department, this element was central to the defense strategy to obtain summary judgment. Plaintiff’s failure to reach this threshold resulted in summary judgment for defense.
Our Manhattan taxi injury lawyers know this aspect of a case must be carefully weighed prior to filing a lawsuit. There is often less of a burden when plaintiffs seek to prove the “permanent consequential limitation” provision or the “permanent loss of a body organ, member, function or system” provision.
Presentation of an unsworn, unsigned affidavit from plaintiff’s doctor will not be enough to raise a triable issue of fact, per the 2004 decision in Zeigler v. Ramadhan.
According to court records, plaintiff was a bicyclist who claimed he was thrown from his bicycle after allegedly being struck by defendant’s taxi. He alleged as a result, he suffered a cervical spine injury, and additionally complained of neck pain and pain in both wrists. However, X-rays taken shortly after the crash did not support this assertion.
Thus, plaintiff asserted injury under the permanent consequential limitations in use, per the 90/180-day provision of the insurance law.
However, defendants (the driver and taxi company) countered this assertion by presenting medical reports indicating plaintiff still had full range of motion in his cervical spine and wrists and negative test reports indicating any permanent injury to the plaintiff. Further, an expert witness for the defense – a radiologist – indicated any injuries to plaintiff’s cervical spine were chronic and degenerative, as opposed to causally related to the crash. Additionally, defendants countered the 90/180-day claim by submission of plaintiff’s deposition, indicating he’d been bedridden for one month after the crash – not three months.
Plaintiff, rather than offer evidence regarding permanent consequential limitations in his cervical spine use, raised a new serious injury claim: A fractured disc. A radiologist testified plaintiff had suffered a post-crash fracture. However, the appellate court found it was improper for the lower court to consider this evidence, as this injury was not listed in the initial bill of particulars.
What’s more, the plaintiff never offered any counter evidence to the 90/180-day claim. Therefore, the appellate court ruled summary judgment for the defense was in order.
Despite this ruling, it is generally not easy for defendants to obtain a summary judgment on the issue of “serious injury.” The key for plaintiffs will be hiring an experienced personal injury law firm to handle their case.
The Law Offices of Nicholas Rose, PLLC offers free consultations. Call 1-877-313-7673.
Boone v. Elizabeth Taxi, Inc., Sept. 30, 2014, New York County Supreme Court, Appellate Division, First Department
More Blog Entries:
Distraction Doctrine Exception to Open and Obvious Defense, Oct. 15, 2014, Manhattan Injury Lawyer Blog