Serious Injury Threshold

Serious Injury Threshold Article 51 of e Insurance Law provides at a plaintiff in a personal injury action arising out of negligence in e use or operation of a motor vehicle mu eablish at he/she has incurred a basic economic loss exceeding $50,000 or mu eablish at he/she has suffered serious injury. Insurance Law 5104(a), (b). Serious injury is defined as personal injury which results in one of e following : Dea Dismemberment Significant disfigurement Fracture Loss of a fetus Permanent loss of use of a body organ, member, function or syem Permanent consequential limitation of a body organ or member Significant limitation of use of a body function or syem Medically determined injury or impairment of a non-permanent nature which prevents e injured person from performing subantially all of e material acts which conitute such person s usual a cuomary daily activities for not less an 90 days during e 180 days immediately following e occurrence of e injury or impairment. Insurance Law 5102(d). Summary Judgment on Serious Injury Threshold The Court of Appeals has ated at where alleged limitations are so minor, mild or slight as to be considered insignificant wiin e meaning of e Insurance Law 5102(d), summary judgment is warranted. See, Licari v. Elliot, 57 N.Y.2d 203, 455 N.Y.S.2d 570 (1982). Where e defeant moves for summary judgment on e issue of serious injury, e defeant has initial buen of eablishing a prima facie entitlement to summary judgment by submitting admissible evidence demonrating at plaintiff did not suain a serious injury arising out of e subject motor vehicle accident. Kearse v. New York City Transit Auority, 16 A.D.3d 45, 789 N.Y.S.2d 281 (2 Dept. 2005) (holding at defeant met his buen as e movant for summary judgment where he submitted admissible proof at e plaintiff suffered no disabilities causally related to e motor vehicle accident). Accoingly, e buen will shift to plaintiff

upon defeant s prima facie showing, whereby plaintiff mu submit evidence in opposition to defeant s motion. Id. It has long been eablished at an attorney s affirmation is sufficient to support a motion for summary judgment, when it is accompanied by documentary evidence a exhibits eablishing a movant s right to relief. Lowe v. Bennett, 122 A.D.2d 728, 511 N.Y.S.2d 603 (1 Dept. 1986), aff d 69 N.Y.2d 700, 512 N.Y.S.2d 364 (1986). However, proof submitted in support of summary judgment motion, or in opposition ereto, mu be in admissible form. Zeigler v. Ramadhan, 5 A.D.3d 1080, 744 N.Y.S.2d 211 (4 Dept. 2004) (unsworn, unsigned affidavit from plaintiff s physician was insufficient to raise a triable issue of fact). Specifically, movant for summary judgment on e issue of serious injury reshold may not rely on unsworn medical recos in support of his/her motion. Dumont v. D.L. Peterson Tru, PHH, 307 A.D.2d 709, 762 N.Y.S.2d 743 (4 Dept. 2003). Notably, however, where plaintiff s counsel provides e unsworn medical recos to e defeant, e defeant may use such recos in support of his/her summary judgment motion. Wiega v. Schunck, 294 A.D.2d 839, 741 N.Y.S.2d 360 (4 Dept. 2002), citing, Lowe v. Bennett, 122 A.D.2d 728, 511 N.Y.S.2d 603 (1 Dept. 1986), aff d 69 N.Y.2d 700, 512 N.Y.S.2d 364 (1986); see also, Patton v. Matusick, 16 A.D.3d 1072, 791 N.Y.S.2d 753 (4 Dept. 2005). Courts have recognized at a defeant moving for summary judgment may submit unsworn medical reports a recos of e plaintiff s physicians to demonrate a lack of serious injury. However, when e defeant does so, he/she opens e door for e plaintiff to rely on e same unsworn or unaffirmed reports a recos in opposition of e motion. Kearse v. New York City Transit Auority, 16 A.D.3d 45, 47, 789 N.Y.S.2d 281, 283 (2 Dept. 2005), citing Pech v. Yael Taxi Corp., 303 A.D.2d 733, 758 N.Y.S.2d 110 (2 Dept. 2003). Permanent Loss of Use of a Body Organ, Member, Function or Syem The New York Court of Appeals has eablished at only a total loss of use is compensable uer e permanent loss of use exception to e no-fault remedy. Oberly v. Bangs Ambulance, Inc., 751 N.Y.S.2d 295, 727 N.Y.S.2d 378 (2001) (holding at alleged continued pain a cramping suffered by plaintiff was not a total loss of use sufficient to show a serious injury ). Courts have been hesitant to fi a serious injury uer e permanent loss of use criterion when e plaintiff has suffered a soft-tissue injury, such as herniated or bulging discs. In Slisz v. Miga, 14 A.D.3d 953, 789 N.Y.S.2d 775 (4 Dept. 2005), e Court held at e plaintiff had not met his buen uer e permanent loss of use exception to e no-fault remedy where e plaintiff had not submitted any evidence at he had suained a total loss of use of his lumbar spine. See also, Schou v. Whiteley, 9 A.D.3d 706, 780 N.Y.S.2d 659 (3 Dept. 2004) (holding at neier e removal of e plaintiff s discs nor e loss of use of certain cervical a lumbar vertebrae conitutes a total loss of use); Raugalas v. Chase Manhattan Corp., 305 A.D.2d 654, 760 N.Y.S.2d 204 (2 Dept. 2003) (plaintiff did not suffer a total loss of

use of her cervical or lumbar spine). Permanent Consequential Limitation or Significant Limitation of Use In oer to eablish a permanent consequential limitation or a significant limitation of use, e medical evidence submitted by plaintiff mu contain objective, quantitative evidence wi respect to diminished range of motion or a qualitative assessment comparing plaintiff s present limitations to e normal function, purpose a use of e affected body organ, member, function or syem. Toure v. Avis Rent-A-Car Syems, 98 N.Y.2d 345, 353, 746 N.Y.S.2d 865 (2002). The Court of Appeals in Toure v. Avis Rent-A-Car Syems eablished at an expert s conclusory fiings, wiout support, will not suffice to eablish a serious injury uer e Insurance Law. See also, Sarkis v. Gay, 15 A.D.3d 942, 789 N.Y.S.2d 578 (4 Dept. 2005) (holding at plaintiff did not suain a serious injury where plaintiff s experts made only conclusory, unsupported fiings wi respect to range of motion); Simpson v. Feyrer, 27 A.D.3d 881, 811 N.Y.S.2d 788 (3 Dept. 2006); Hock v. Aviles, 21 A.D.3d 786, 801 N.Y.S.2d 572 (1 Dept. 2005). In quantifying e limitations of use a plaintiff has incurred, he/she is required to show more an a mild, minor or slight limitation of use. Miki v. Shufelt, 285 A.D.2d 949, 728 N.Y.S.2d 816 (3 Dept. 2001). In Miki v. Shufelt, e court held at e plaintiff failed to eablish eier a permanent consequential limitation of use or a significant limitation of use where e plaintiff s own experts characterized e disability as mild. Furer, e court ated at fiings of limited range of motion failed to eablish a serious injury where e medical experts provided no details as to ese fiings a failed to show how ey were ascertained. See also, Brat-Miller v. McAle, 21 A.D.3d 1152, 801 N.Y.S.2d 834 (3 Dept. 2005). Proof of a herniated disc, wiout additional objective medical evidence eablishing at e accident resulted in significant physical limitations, is not alone sufficient to eablish a serious injury. Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380 (2005); Kearse v. New York City Transit Auority, 16 A.D.3d 45, 789 N.Y.S.2d 281 (2 Dept. 2005); John v. Engel, 2 A.D.3d 1027, 768 N.Y.S.2d 527 (3 Dept. 2003). In John v. Engel, e court held at even ough plaintiff s MRI showed a herniated disc at C5-6, plaintiff s injury did not conitute a serious injury because e plaintiff s medical recos revealed no evidence of objective tes to determine any loss of range of motion or spasm or muscle weakness or tingling sensations. See also, Grimes-Carrion v. Carroll, 17 A.D.3d 296, 794 N.Y.S.2d 30 (1 Dept. 2005) (holding at plaintiff did not eablish a serious injury uer eier e permanent consequential limitation qualifier or e significant limitation qualifier where expert did not quantify spinal range of motion limitations until over 3 years after e accident); but see, Desulme v. Stanya, 12 A.D.3d 557, 785 N.Y.S.2d 477 (2 Dept. 2004) (holding at quantified limitations of range of motion eablished a serious injury). Plaintiff s subjective complaints of pain, wiout any objective medical evidence in support, are insufficient to eablish a serious injury. Gonzalez v. Green, 24 A.D.3d 939, 805

N.Y.S.2d 450 (3 Dept. 2005) citing, Scheer v. Koubeck, 70 N.Y.2d 678, 679, 518 N.Y.S.2d 788 (1987) (holding at pain alone cannot eablish a basis for a serious injury). Courts have also required plaintiffs to eablish a causal connection between e MRI fiings a e alleged limitations of use. In Davis v. Evan, 304 A.D.2d 1023, 758 N.Y.S.2d 203 (3 Dept. 2003), e Court held at plaintiff failed to eablish a serious injury uer e permanent consequential limitation a significant limitation of use categories, where e plaintiff failed to explain how a cervical MRI revealing cervical herniated discs supports a fiing of permanent loss of function in her oracic spine, or to identify any oer objective or diagnoic tes utilized to support e conclusion of loss of oracic spine function. In Davis, e plaintiff could point to an MRI showing a disc herniation, but wiout some ki of causal connection between e disc herniation a e claimed limitations of use, plaintiff could not eablish a serious injury. 90/180 Day Limitation The Insurance Law provides at e plaintiff may eablish a serious injury by showing at she has a medically determined injury or impairment of a non-permanent nature which prevents her from performing subantially all of e material acts which conitute her usual a cuomary daily activities at lea 90 days out of e180 days immediately following e accident. Insurance Law 5102. When conruing e atutory definition of a 90/180-day claim, e wos subantially all should be conrued to mean at e person has been prevented from performing his usual activities to a great extent, raer an some slight curtailment. Thompson v. Abbasi, 15 A.D.3d 95, 788 N.Y.S.2d 48 (1 Dept. 2005). The Court of Appeals has ated at ere is no serious injury uer e 90/180 limitation qualifier where e plaintiff returned to work wiin a mon after e accident a admitted at he resumed his usual schedule ereafter. Licari v. Elliot, 57 N.Y.2d 203, 238, 455 N.Y.S.2d 570, 574 (1982). The Court in Licari furer noted at e plaintiff was able to maintain his daily routine for mo of each day following e accident. Id. In Thompson v. Abbasi, supra., e court fou at e plaintiff had not suained a serious injury uer e 90/180-day qualifier. Specifically, e court ated, [i]n light of plaintiff s admission at he only missed one week of work, his unsubantiated claim at his injuries prevented him from performing subantially all of e material acts conituting his cuomary daily activities during at lea 90 out of e fir 180 days following e accident is insufficient to raise a triable issue of fact. Id. at 101. See also, Arrowood v. Lowinger, 294 A.D.2d 315, 742 N.Y.S.2d 294 (1 Dept. 2002) (holding at plaintiff s unsubantiated claims at he was unable to do household chores was insufficient to eablish a serious injury uer e 90/180-day limitation exception to e no-fault remedy). Furer, Courts have been unwilling to fi a serious injury uer e 90/180-day

limitation where e plaintiff s treating physician s placed no rerictions on her, inead provided her wi a neck brace a e suggeion at she take a rong dosage of Motrin. Gonzalez v. Green, 24 A.D.3d 939, 805 N.Y.S.2d 450 (3 Dept. 2005). Courts have fou at medical fiings at support e 90/180-day limitation exception to e no-fault remedy mu be based on fiings which relate to plaintiff s coition ree mons after e accident, or examinations a tes which were contemporaneous to e accident. Toussaint v. Claudio, 23 A.D.3d 268, 803 N.Y.S.2d 564 (1 Dept. 2005). In Toussaint v. Claudio, e court fou at reports of defense medical experts, based on examinations of e plaintiff coucted six years after e subject automobile accident, a which only addressed plaintiff s current coition were insufficient to eablish at plaintiff had not suffered a serious injury uer e 90/180-day limitation category. Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005) On April 28, 2005, The Court of Appeals issued a decision in response to ree separate appeals: Pommells v. Perez, Brown v. Dunlop, a Carrasco v. Meez. The facts of each case were relatively similar. In each case, e defeant had moved for summary judgment on e basis at e plaintiff s alleged soft-tissue injuries did not conitute a serious injury uer Insurance Law 5102(d). Gap in Treatment : In Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005), Court of Appeals held at a gap in treatment puts into queion e reliability of e medical expert s conclusions about causation a also e seriousness of e injuries emselves. The Court specifically ated, [a] plaintiff who terminates erapeutic measures following e accident while claiming serious injury mu offer some reasonable explanation for doing so. Id. at 574, 797 N.Y.S.2d at 385. In dismissing e Pommells v. Perez complaint, e Court observed at e Plaintiff provided no such explanation where plaintiff opped physical erapy 6 mons following e accident a failed to seek any medical treatment until years later, for purposes of litigation. However, by e same reasoning, e Court reinated e Brown complaint, fiing at e plaintiff s explanation for discontinuation of treatment was sufficient to survive summary judgment. In e Brown v. Dunlop facts, e defeant also raised e issue of causation by pointing out a two a a half year gap in treatment. The Court denied summary judgment in favor of defeants on e issue of serious injury in Brown v. Dunlop, however, because e plaintiff refuted defeant s summary judgment motion by showing at e plaintiff opped getting medical care after e treating doctors determined at furer erapy would be palliative, recommeed at plaintiff op treatment, a inructed plaintiff to continue exercises at home.

Pre-exiing Medical Coition or Intervening Medical Problem: In Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005) e Court of Appeals also dealt wi e issue of a plaintiff s pre-exiing medical coition or intervening medical problem on summary judgment. The Court held at when e defeant moves for summary judgment a raises an issue of wheer a pre-exiing medical coition caused e alleged injury, e plaintiff mu address e queion of wheer e symptoms a/or injuries were actually caused by e accident to survive summary judgment. In oer to raise e issue, e defeant mu provide more an a conclusory atement by a medical professional at a pre-exiing coition is present. In re-inating e Brown v. Dunlop complaint, e Court fou at e defeant had not raised an issue of a pre-exiing coition by offering a conclusory notation by one of e Defeant s doctors, when all oer doctors in e case (including defeant s oer doctors) concluded at e injury was caused by e accident. However, in e deciding on e Carrasco v. Meez facts, e Court fou at defeant had sufficiently raised e issue of wheer e injury was caused by a pre-exiing coition where e doctor had closely examined e plaintiff a e plaintiff s medical recos a concluded at e injury was not caused by e subject motor vehicle accident. The court noted at e plaintiff s own treating doctor came to e same conclusion. Therefore, a showing at a pre-exiing coition caused e plaintiff s injury should include what materials e doctor relied upon in reaching e conclusion. A conclusory opinion alone will not shift e buen to e plaintiff to refute e defeant s allegations. A plaintiff opposing summary judgment where e defeant sufficiently raises e issue of a pre-exiing coition mu submit admissible evidence directly addressing e alleged preexiing coition. A doctor s opinion at e injury was caused by e accident is not enough. The plaintiff mu discuss, explain or refute e exience of e pre-exiing coition to survive summary judgment. Gap In Treatment : Case Law Update Since Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005), e Appellate Division has continued to hold at an unexplained gap in treatment is fatal to a plaintiff s claim where e defeant moves for summary judgment on e issue of e serious injury reshold. In Colon v. Kempner, 20 A.D.3d 372, 799 N.Y.S.2d 213 (1 Dept. 2005), e court held at a ree year unexplained gap in plaintiff s treatment warranted summary judgment in favor of defeant on issue of serious injury reshold, where plaintiff declined to receive any treatment a only planned on seeing a doctor in e future, if it gets worse. In Teodoru v. Conway Transport Service, Inc., 19 A.D.3d 479, 798 N.Y.S.2d 466 (2 Dept. 2005), e court granted summary judgment in favor of defeant where plaintiff offered no explanation for 2 1/2 year gap in treatment for her alleged injuries. See also, Gomez v. Epein, 29 A.D.3d 950, 818 N.Y.S.2d 101 (2 Dept. 2006) (plaintiff s unexplained four year gap in treatment warranted summary judgment in favor of defeant); Rubensccaro v. Alfaro,

29 A.D.3d 436, 815 N.Y.S.2d 514 (1 Dept. 2006) (holding at 18 mon unexplained gap in treatment warranted summary judgment in favor of defeants on issue of serious injury reshold). In Perez v. Rodriguez, 25 A.D.3d 506, 809 N.Y.S.2d 15 (1 Dept. 2006), e court granted summary judgment in favor of e defeant on e issue of serious injury reshold where plaintiff failed to explain a ree year gap in treatment. The court fou at e sworn affirmation by plaintiff s physician, who examined her more an ree a one-half years after e accident, was insufficient to raise an issue of fact wi rega to e serious injury reshold. Notably, e court furer ated at e plaintiff s doctor neglected to discuss e prolonged gap in plaintiff s treatment a, ieed, exacerbated e significance of at unexplained gap by ating at e plaintiff is permanently disabled as a result of e automobile accident [...] her coition is chronic a permanent a she has suffered partial but significant impairments to e spine, shoulder a left knee which requires surgery a will necessarily require future medical care at lea in e nature of erapy a eroid injections. Id. The dissenting opinion, however, ated at e cessation of treatment by e plaintiff had e appearance of a determination at furer treatment would not provide a resolution to e injuries or pain. Specifically, e dissent quoted e Court of Appeals in Pommells v. Perez, for e proposition at e law surely does not require a reco of needless treatment in oer to survive summary judgment. Perez v. Rodriguez, 25 A.D.3d 506, 809 N.Y.S.2d 15, quoting, Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380. Alough is argument did not succeed in Perez v. Rodriguez, it may be a successful argument for anoer plaintiff, who chose not to continue insignificant treatment. In Mullings v. Huntwork, 26 A.D.3d 214, 810 N.Y.S.2d 443 (1 Dept. 2006), e court held in favor of a defeant moving for summary judgment on e serious injury reshold where plaintiff failed to explain a gap in treatment. In is case, e plaintiff opped physical erapy in 2002 a began acupuncture treatment inead. At e e of at year, back surgery was recommeed, but e plaintiff ceased all treatment a elected not to have e surgery. The court held at plaintiff failed to explain why she ceased treatment or why she decided to forego e surgery a granted defeant s motion for summary judgment. Pre-Exiing Injury: Case Law Update Since Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2006), e Appellate Division has dealt wi e issue of a plaintiff s pre-exiing injury on a motion for summary judgment pursuant to e serious injury reshold. In Aga v. Bryant, 24 A.D.3d 182, 805 N.Y.S.2d 348 (1 Dept. 2005), defeant was entitled to summary judgment on e issue of serious injury reshold where he submitted e sworn report of a radiologi which eablished at e plaintiff s injuries resulted from degenerative processes a not e automobile accident. Plaintiff failed to submit any admissible evidence on e issue of causation in opposition. In Montgomery v. Pena, 19 A.D.3d 288, 798 N.Y.S.2d 17 (1 Dept. 2005), e court granted e defeant s motion for summary judgment where e plaintiff failed to come for

wi any objective proof on e issue of causation. Specifically, e plaintiff s submissions in opposition to e defeant s motion for summary judgment on e issue of serious injury reshold failed to directly address e pre-exiing coitions at e defeant pointed to in his submissions. See also, Maye v. Stearns, 19 A.D.3d 902, 798 N.Y.S.2d 152 (3 Dept. 2005) (holding at plaintiff s chiropractor s affidavit which ated conclusion at plaintiff had no previous contributing hiory was insufficient to eablish a triable issue of fact where e chiropractor was unaware of e plaintiff s prior injuries a did not address em in his report.) In Carter v. Full Service, Inc., 29 A.D.3d 342, 815 N.Y.S.2d 41 (1 Dept. 2006), e plaintiff was involved in a prior motor vehicle accident only nine days before e subject motor vehicle accident a e sole injury alleged was a left-knee ACL tear. The plaintiff s expert teified at trial at e subject motor vehicle accident was e cause of e injury, but did not provide any explanation of how he concluded at e seco accident, raer an e fir accident, caused e injury. In light of e plaintiff s lack of evidence on e issue of causation, e Fir Department upheld e trial court s directed veict in favor of e defeant. The court also based its fiing on e defeant s medical expert s teimony at plaintiff s injury could not have been caused by e seco, subject motor vehicle accident because e impact did not generate sufficient force to cause e injury. In Hernaez v. Almanzar, N.Y.S.2d, 2006 WL 2506416 (1 Dept. 2006), e court granted summary judgment in favor of defeants on e issue of serious injury reshold where e defeants submitted plaintiff s own deposition teimony at she had been involved in two prior motor vehicle accidents in support of its claim at plaintiff s injuries were pre-exiing. Alough plaintiff submitted evidence in opposition at his treating doctors concluded at e injuries had been caused by e subject motor vehicle accident, e court held at e plaintiff did not come forwa wi sufficient evidence on e issue of causation because none of e doctors explained e basis for e claim at e injuries were caused, not exacerbated, by e subject motor vehicle accident. See also, Smi v. Brito, 23 A.D.3d 273, 804 N.Y.S.2d 82 (1 Dept. 2005) (plaintiff s submissions failed to eablish a causal connection between e claimed injuries a e subject automobile accident.)