(914) 220-1086The New York Supreme Court, Appellate Division, First Department held that the plaintiff had properly raised a triable issue of fact as to whether she suffered significant and/or permanent limitations to her spine as required under the Insurance Law.
The plaintiff was injured in an auto accident due to the defendant driver’s negligence. The plaintiff suffered spinal injuries and sued the defendant for personal injury damages.
Article 51 of the Insurance Law requires that in order for a plaintiff to seek damages for a car accident injury, she must prove she either sustained over $50,000 in damages or sustained a serious injury. Insurance Law 5102 (d) defines a personal injury as death, dismemberment, significant disfigurement, fracture, permanent loss of use, permanent consequential limitation, loss of a fetus, or significant limitation. Insurance Law 5102 (d) permits recovery for non-permanent injuries if the plaintiff proves that the plaintiff’s ability to use the injured body part normally in her daily activities is hampered for at least 90 of the 180 days following the accident.
Here, after the plaintiff initiated the lawsuit, the defendant filed a motion for summary judgment, requesting that the court dismiss the case. The defendant argued that the plaintiff had failed to provide any evidence to meet the threshold issue of serious injury as required by Insurance Law 5102 (d).
As part of discovery, the defendant hired an orthopedic expert who examined the plaintiff. The orthopedic expert did not examine the plaintiff’s medical records or MRI films. The orthopedic expert stated that the plaintiff had a full range of motion in her spine. Thus, the defendant argued that the plaintiff did not sustain a serious injury to her spine. In the doctor’s opinion, her spine was not permanently or significantly impaired, nor was there evidence that the plaintiff’s daily activities were hampered for at least 90 days due to a spinal injury.
In her opposition, the plaintiff introduced her own medical expert’s report. This report stated that she suffered from objective spinal injuries and that her range of motion was limited. The report asserted that the spinal injuries were caused by the car accident. Because the opinion of the plaintiff’s medical expert’s conflicted with that of the defendant’s medical expert, summary judgment on whether the plaintiff experienced permanent or significant limitation of her spine was not proper. There was a triable issue of fact for a jury to decide.
However, the defendants did succeed on their 90/180-day injury argument. The defendants argued in their motion for summary judgment that the plaintiff did not appear to suffer from limited use of her spine during a 90-day period following the accident. In fact, the plaintiff saw a doctor following the car accident who told her that she could return to work two weeks later, albeit in a limited duty capacity. In all, though, the plaintiff missed two months of work. Therefore, the plaintiff failed to rebut the defendant’s prima facie showing that she did not suffer from the injury for 90 of the 180 days following the accident.
If you get in a car accident and are injured, see a doctor immediately following the accident. Continue to see specialists regularly and keep them updated on how you feel and your range of motion. This will help you document that you were impaired for at least 90 days.the extent of your injuries.
If you or a loved one has been injured in a car accident, contact the expert personal injury lawyers at the Law Offices of Thomas L. Gallivan, PLLC today to discuss your case.
Anderson v. Pena, 122 AD3d 484 (1st Dept., Nov. 18, 2014).
