Under New York law, plaintiffs in personal injury cases arising from automobile accidents must show they suffered either a “basic economic loss” greater than $50,000 or a “serious injury” that meets the definition set forth in New York Insurance Law § 5104. A plaintiff can meet the serious injury requirement by showing that he or she suffered a non-permanent injury that prevented him or her from doing “substantially all” regular daily activities for at least 90 of the 180 days immediately after the accident. Defendants often seek summary judgment based on the issue of serious injury.
The New York Supreme Court, Queens County recently considered a motion for summary judgment in a case in which the plaintiff walked out of the emergency room without completing the recommended workup, but he alleged he was confined to bed for a month afterwards. In Yong Jun Li v. Adom, the defendant moved for summary judgment, alleging the plaintiff had not suffered a serious injury.
The plaintiff was driving a scooter when it was hit by the defendant’s vehicle. An ambulance took the plaintiff to the hospital. He testified that he was confined to bed for about a month and to his home for about two and a half months as a result of his injuries.
The defendant’s trauma expert reviewed the hospital records and found no indication of a significant injury resulting from the collision. The plaintiff had complained of pain in the right thigh, right knee, left shoulder, and left abdomen. The records showed a normal range of motion for his shoulder. They also indicated he had left the hospital against medical advice without completing the tests and without notifying staff. The trauma expert concluded that the records documenting the plaintiff’s complaints and the emergency room examinations did not support the injuries he alleged.
Another defense expert examined the plaintiff. He found some loss of motion in the plaintiff’s left shoulder. He believed the plaintiff had resolved cervical and lumbar sprain/strain and resolved internal derangement in the left shoulder. He concluded that there was no disability resulting from the collision and that the plaintiff could perform his usual daily activities and work without restriction. He concluded there was a causal relationship between the plaintiff’s original complaints and the accident.
Another doctor performed an independent radiology review. He concluded that the MRI showed no rotator cuff or labral tear. Based on review of a later MRI, he determined that the plaintiff had degenerative changes in the lumbar and cervical spine. He found no evidence of a traumatic injury or an injury caused by the accident in the lumbar or cervical spine.
The defendant moved for summary judgment, arguing that the plaintiff had not sustained a nonpermanent injury that kept him from performing substantially all of his daily activities for at least 90 days within the 180-day period immediately following the accident.
When the defendant moves for summary judgment on the serious injury issue, the defendant has the burden of showing the plaintiff does not have a cause of action. The defendant can show that the plaintiff did not suffer a serious injury through expert affidavits or affirmations that indicate that there were no objective medical findings supporting the plaintiff’s claim.
If the defendant’s motion raises an issue of serious injury, the plaintiff must show that there is an issue of fact regarding whether he or she sustained a serious injury.
The plaintiff argued that the defendant did not make a prima facie case because there was evidence of limitations on the range of motion in the plaintiff’s left shoulder. The doctor had also found a causal relationship between the alleged injuries and the accident. This opinion directly contradicted the opinion of the doctor who reviewed the radiology reports and found the injuries to the spine were degenerative.
The court found that the defendant had failed to make a prima facie case that it was entitled to judgment as a matter of law. The defendant had not shown that the plaintiff did not suffer a serious injury with sufficient evidence to show there were no material issues of fact.
The court denied the summary judgment motion. The evidence submitted by the defendant was contradictory and therefore did not make the prima facie showing. If the defendant fails to make a prima facie case, the trial court must deny the motion for summary judgment without considering the sufficiency of the plaintiff’s filings.
Our New York automobile accident attorneys understand that, when there are conflicting expert opinions as to whether there was a serious injury, the court should deny a motion for summary judgment and allow the case to proceed.
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.
Yong Jun Li v. Adom, May 2, 2016, Supreme Court of the State of New York, Queens County
More Blog Entries:
Rebutting a Defense Showing of No Serious Injury in New York Auto Cases, March 23, 2016, New York City Injury Lawyer Blog