(914) 220-1086A New York Appellate Court recently reversed a trial level decision granting summary judgment in favor of the defendant in the 2009 case of Esther Jacobs v. Hector D Rolen. Plaintiff, who was involved in a car accident in New York, currently experiences limited range of motion in her lumbar spine, but full range of motion everywhere else. Defendant’s expert, a radiologist, argued that the reduced range of motion experienced by the plaintiff was due to degenerative disc disease rather than causally related to the accident. Defendant also submitted an expert affidavit from an orthopedic surgeon who opined that although the plaintiff still experenced a reduction in range of motion 2 1/2 years after her automobile accident, these injuries were not “serious” as a matter of law. According to Insurance Law Section 5102(d), “‘Serious injury” is defined as a personal injury which results in, among other things, “permanent consequential limitation of use of a body organ or member” and/or “significant limitation of use of a body function or system.” In the lower court, a Bronx County Supreme Court Justice ruled that the defendant had met its burden of proof for summary judgment and granted the motion.
On appeal, the First Department held that plaintiff successfully raised issues of fact as to whether the injuries sustained constituted a “serious injury.” Plaintiff’s expert, her treating physician, contended that plaintff’s injuries were, in fact, causally related to the accident. He supported his position by relying on “objective, quantitative tests” that showed significant range of motion limitations directly after the accident, as well as three years later. Plaintiff was also able to sufficiently explain a gap in treatment by stating that she continued her physical therapy until her no-fault benefits ceased, at which point she could no longer afford to pay for her treatment.
This is a familiar fact pattern for attorneys that handle car accident cases in New York. This is commonly referred to as a “threshold case”, where it is questionable whether the injuries sustained will constitute a “serious injury” under the Insurance Law. Appellate decisions in this area of law are very fact specific and as illustrated here, it is important for plaintiffs to submit an affidavit from a physician whose opinions are based on “objective, quantitative tests” such as a Electromyography (EMG).
