The New York Supreme Court, Appellate Division, First Department modified a trial court order in a car accident case, denying the defendant’s motion for summary judgment regarding the “significant” limitation and 90/180-day injury claims.
The plaintiff was involved in a car accident and suffered injuries to his left shoulder. After the accident, the plaintiff filed a negligence lawsuit under Insurance Law 5102 (d). The defendant filed a motion for summary judgment, requesting that the complaint be dismissed.
Article 51 of the Insurance Law allows plaintiffs to sue the driver-at-fault if either the damages exceed $50,000 or the plaintiff has suffered a “serious injury.” The plaintiff must prove that the other driver was at fault and that the other driver’s negligence caused the injuries.
Insurance Law 5102 (d) defines a serious injury as: (1) death, (2) dismemberment, (3) severe disfigurement, (4) loss of fetus, (5) fracture, (6) permanent loss of use of the body part, (7) permanent consequential limitation of the use of the body part, (8) significant limitation of the use of the body part or (9) non-permanent impairment of the use of the body part that prevents the plaintiff (in at least 90 days during the 180 days following the accident) from performing his or her daily activities.
In his motion for summary judgment, the defendant argued that the plaintiff had failed to show a “permanent consequential” or “significant limitation” or a 90/180-day injury as required by Insurance Law 5102 (d).
As part of discovery, the defendant’s orthopedist expert examined the patient. The defense expert found a full range of motion and concluded there were no issues with the shoulder. The orthopedist also opined there was evidence of a pre-existing left shoulder injury that could have caused the issues, not the car accident. The orthopedist found evidence that a minor contusion was the result of the crash but believed the more serious injuries were due to the pre-existing injury. In addition, the defendant’s radiologist expert conducted an MRI and found that the shoulder appeared normal.
Based on this expert testimony, the defendant argued that no permanent consequential or significant limitation of the left shoulder existed. The plaintiff opposed and submitted medical reports by his treating orthopedist. According to the reports, the orthopedist saw only a minor limitation in June 2010, the plaintiff then ceased treatment for almost 1.5 years, and then the orthopedist saw significant injury in September 2011. Because of this, the First Department held the plaintiff failed to raise a triable issue of fact in his opposition. There appeared to be no permanent consequential limitation and thus that claim was dismissed.
However, there was evidence of a “significant limitation.” The car accident may have aggravated his pre-existing condition and caused a significant limitation. In January 2010, right after the accident, the orthopedist found significant limitation. The orthopedist stated in the medical history that he believed the car accident caused the injury and ordered physical therapy, which helped. The plaintiff also submitted an MRI report that was taken following the accident that showed a tear caused by the accident that exacerbated his pre-existing condition. The First Department held the plaintiff had at least raised a triable issue of fact as to whether the accident aggravated his shoulder injury and caused significant limitation.
Finally, the defendant argued that the plaintiff did not suffer a 90/180-day injury. The defendant established a prima facie entitlement to summary judgment by showing that the car accident did not cause a new injury. However, in response, the plaintiff raised a triable issue of fact as to whether he was impaired by an injury for at least 90 days following the accident. Plaintiff missed four months of work. He testified that his daily activities like cooking and cleaning were severely hampered. In addition, the medical reports showed he wasn’t medically cleared to work until six months after the accident. As such, summary judgment was not proper on the 90/180-day issue.
If you or a loved one has been injured in an auto accident, you may have a negligence case. Call the personal injury lawyers at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential claims.
Sutliff v. Qadar, 122 AD3d 452 (1st Dept., Nov. 13, 2014).
