In a recent decision, the New York State Appellate Division, Second Department held that in a motor vehicle accident, disc bulges and decreased range of motion constitute a “serious injury” under Insurance Law Section 5102. The affirmation of plaintiff’s treating physician submitted to the court was based on a recent exam, as well as examinations closer in time to the accident.
The physician’s affirmation made reference to reports of MRI scans of the cervical and lumbar spines indicative of four bulging discs. Plaintiff’s physician concluded that the bulges and range-of-motion limitations observed during his examinations were permanent and causally related to the accident. The Second Department held that “[t]his submission alone was sufficient to raise a triable issue of fact as to whether he sustained a serious injury to the cervical and/or lumbar regions of his spine under the permanent consequential limitation of use category under the “serious injury” statute.
Furthermore, the Second Department held that plaintiff adequately explained a gap in treatment by stating in his affidavit that he could not afford any additional medical treatment after no-fault benefits were terminated.
Tai Ho Kang v. Young Sun Cho, 2010 NY Slip Op 05757 [2nd Dept. 2010].