(914) 220-1086The New York Supreme Court, Appellate Division, First Department modified a trial court order that granted the defendant’s motion for summary judgment and dismissed a negligence complaint in a car accident case. The First Department dismissed the claim under the 90/180 day rule but allowed the plaintiff to proceed with the “permanent consequential” and “significant” limitations claim under Insurance Law 5102 (d).
The plaintiff was involved in a car accident caused by the defendant. The plaintiff suffered a lumbar and cervical spine injury, as well as a left shoulder injury. The plaintiff filed a negligence lawsuit, seeking personal injury damages for the three injuries.
The plaintiff is a police officer. After getting hurt in the accident, she saw an orthopedic specialist. The orthopedic specialist evaluated her and saw range-of-motion issues in her lumbar spine. The plaintiff missed eight weeks of work, then returned in a limited capacity.
Article 51 of the Insurance Laws allows victims to seek compensation for personal injuries suffered in car accidents. However, the Insurance Laws have strict eligibility requirements. Either the damages must be in excess of $50,000 or the victim must have suffered a serious injury. Insurance Law 5102 (d) defines “serious injury.”
A serious injury under Insurance Law 5102 (d) is: (1) death, (2) dismemberment, (3) significant disfigurement, (4) death of a fetus, (5) fracture, (6) permanent loss of use of a body part, (7) permanent limitation of a body part, (8) significant limitation of a body part or (9) non-permanent limitation of a body part that impaired the victim’s ability to perform his or her daily activities during at least 90 of the 180 days following the car accident.
The 90-day claim can often be difficult to prove. Many plaintiffs fail to seek treatment in a timely period. Aside from simply showing an injury exists, though, the plaintiff needs to also show that the injury impaired him or her so much that performing normal routine tasks was not possible for at least 90 of the 180 days immediately following the accident.
Here, the plaintiff failed to prove she had suffered limitation for at least 90 days. She was able to return to work after eight weeks. There was nothing in the medical record to show the exact number of days she was impaired.
However, the plaintiff did show there was a triable issue of fact regarding her lumbar spine injury. First, the court held that the defendant had established a prima facie case of entitlement regarding the cervical spine and shoulder injuries. The defense medical expert found no issues with the cervical spine. During an examination, the plaintiff appeared to have full range of motion with no impairments. In addition, there was no medical evidence of the plaintiff being treated for a left shoulder injury. In fact, at the plaintiff’s deposition, she could not even remember which shoulder was injured. She also never once mentioned a shoulder injury when the defense expert examined her.
With regards to the lumbar injury, the plaintiff had her orthopedic specialist, also her medical expert, examine her as part of the motion for summary judgment. The orthopedic specialist said he had found a limited range of motion when she first visited him after the accident. The doctor also found a limited range of motion during the summary judgment exam. Therefore, whether the plaintiff suffered a range of motion in her lumbar region was a question for the jury to decide.
The defense tried to keep out a piece of evidence, an MRI scan that the plaintiff’s witness relied on. However, the court held that because the orthopedist had reviewed the MRI, described what he saw, and drew conclusions from it (that it showed bulging disks that were caused by the car accident), it was admissible medical evidence.
Thus, the First Department granted the defendant’s motion for summary judgment regarding the cervical spinal injury and shoulder injury, as well as the 90-day rule. However, the case will proceed to trial on whether the lumbar injury is a permanent or significant limitation.
If you or a loved one has been injured in a car accident, contact the skilled personal injury attorneys at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential negligence claims.
Fludd v. Pena, 122 AD3d 436 (1st Dept., Nov. 13, 2014).
