In New York, a plaintiff in a personal injury case arising from an automobile accident must prove not only liability but also that the injuries resulting from the accident rose to the level of a “serious injury,” as defined by New York law. Plaintiffs often move for summary judgment as to liability, serious injury, or both. The plaintiff in Cervantes v. Gracious Home, LLC recently moved for summary judgment as to both liability and serious injury.
The plaintiff alleged he sustained serious injuries when a minivan struck him while he was crossing the street in a crosswalk with the crossing signal. He and his wife filed suit against both the owner and the operator of the minivan.
The plaintiff moved for summary judgment. To succeed, he must make a prima facie case that he is entitled to judgment as a matter of law. The prima facie case must be made through admissible evidence and must eliminate all triable issues of fact. In this case, the court noted that a prima facie case required the plaintiff to show that he was hit while crossing with the signal in the crosswalk. Once he does so, the burden shifts to the defendant to rebut the plaintiff’s case with admissible evidence that raises a material issue of fact.
The plaintiff offered testimony from his deposition that stated that he was struck by the minivan as he crossed the street in the crosswalk with the signal in his favor. The defendants argued that the accident did not occur in the crosswalk. The defendants offered the driver’s testimony that he stopped a foot before the crosswalk, waited for people to cross, drove three of four feet, and then hit the plaintiff. He testified that he saw the plaintiff on the ground beyond the crosswalk. The court found that this testimony failed to raise an issue of fact regarding whether the plaintiff had been in the crosswalk when he was hit. The testimony that the driver saw the plaintiff lying beyond the crosswalk was not evidence he was outside the crosswalk when he was hit. The plaintiff had testified that he had been thrown out of the crosswalk when he was struck. Furthermore, the driver had testified that he thought he hit the plaintiff in the crosswalk.
The court also rejected the defendants’ argument for comparative fault, based on the plaintiff’s testimony that he was looking ahead while crossing the street. The court noted that the plaintiff said he looked ahead when he entered the street, and then he looked to his left and saw the defendants’ vehicle. The court found that the defendant failed to rebut the plaintiff’s prima facie showing of entitlement to a judgment as to the issue of liability.
In a New York personal injury case arising from an automobile accident, the plaintiff must show that he or she sustained a “serious injury” as set forth in New York Insurance Law § 5102(b). The statutes enumerate several injuries that qualify as serious. Additionally, a plaintiff may show his or her injuries were serious by showing that he or she was unable to perform “substantially all” regular daily activities for at least 90 of the 180 days immediately following the accident.
The plaintiff claimed he suffered a fractured knee. He submitted an affirmation from his orthopedic surgeon, who, based on the extent of the plaintiff’s injuries and the requirement that he stand for long periods of time in his job, determined the plaintiff was 100% disabled and ordered him to stay off work beginning on March 1, 2013. The surgeon did not clear the plaintiff to return to work until July 1, 2013. The court found that the plaintiff had made a prima facie showing of a serious injury, based on the evidence from the surgeon. The defendants argued that the plaintiff had not provided the surgeon’s progress notes or any evidence supporting his claim that he was unable to perform substantially all of his regular activities. The court found the defendants’ arguments insufficient to raise an issue of fact, determining that the surgeon’s order that the plaintiff stay off work for four months met the 90/180 requirement.
The court granted the plaintiff’s motion for summary judgment on both liability and the issue of serious injury.
The Law Offices of Nicholas Rose understand the requirements to prove liability and serious injury in New York automobile accidents. If you have been seriously injured as the result of being hit by an automobile, you need an experienced New York pedestrian accident attorney. Call 1-877-313-7673 to schedule your free consultation.
Cervantes v. Gracious Home, LLC, May 9, 2016, Supreme Court of the State of New York, County of New York
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