Personal Injury Accident Lawyer Fails to Present Sufficient Medical Evidence and the Plaintiff´s Claim is Dismissed*

This is a motion by the defendants for summary judgment dismissing the complaint on the ground that the plaintiff did not meet the serious injury threshold requirement of Insurance Law.

On May 13, 2000, while stopped in traffic on the Expressway, a vehicle being driven by the plaintiff was struck in the rear by a taxi owned by defendant Park Transit Inc. and driven by defendant Hammas Hogue. The plaintiff's vehicle then struck the car in front of it and that car, in turn, struck another car.

The plaintiff commenced this action on the advice of her personal injury accident lawyer seeking damages for injuries she sustained in the accident. She claims to have sustained a "medically determined injury or impairment of a non-permanent nature which prevented her from performing her usual activities for at least 90 days during the 180 days immediately following the occurrence of the injury."

It is settled law that in order to prevail on a motion for summary judgment, the moving party must produce proof to show the absence of any material issue of fact and the right to judgment as a matter of law.

Where, as here, a defendant seeks summary judgment on the threshold "serious injury" issue under "No-Fault threshold," they bear the initial burden of establishing the absence of a "serious injury." If the moving party makes the requisite showing, the burden then shifts to the opposing party to come forward with proof to raise an issue of fact requiring a trial.

The defendants provided proof that the plaintiff was transported from the scene of the accident to the emergency room at Macklin Hospital Center and released the same day with instructions to take Tylenol and follow up with her own doctor.

She had a course of physical therapy for her back and left shoulder and saw some improvement after her treatments. She also testified that she was confined to bed for two weeks and stayed at home for 2 months after the accident, leaving only for doctor appointments.

The plaintiff, a 37-year-old licensed practical nurse, claimed she was out of work for only six weeks after the accident. At her deposition, however, she testified that she was out of work for three months and after returning, performed light duty for some time.

The defendants also submit the reports of a neurologist, an orthopedist and radiologist.

The neurologist´s report stated the plaintiff´s "cervical, thoracic and lumbar sprain/strain, resolved." He found the plaintiff was able to perform all of her normal activities of daily living without restrictions. The orthopedist found no disability or limitations in the plaintiff's functioning and the radiologist found all normal results.

The plaintiff's personal injury accident lawyer submitted a physician's report that stated he found posttraumatic cervical and lumbosacral radiculopathy syndrome, resolved left shoulder strain and resolved bilateral knee contusion, with range of motion deficits in the cervical spine, thoracolumbar spine and shoulder.

The plaintiff also submitted the report of a neurologist who found "posttraumatic cervical and lumbosacral spine derangement, sprain, strain ... and internal derangement of the left knee", and concluded that these conditions resulted from the accident.

The defendants have met their burden on this motion by producing proof sufficient to show the absence of any material issue of fact and the right to judgment as a matter of law. That is, the defendants' proof establishes the absence of a "serious injury" as a matter of law under the 90/180 category of Insurance Law.

The burden then shifted to the plaintiff's personal injury accident lawyer to present proof to raise an issue of fact requiring a trial. The plaintiff failed to meet this burden.

The plaintiff's subjective complaints alone are not sufficient and the remainder of the plaintiff's proof was insufficient to defeat the defendants' motion.

The defendants' motion for summary judgment was therefore granted and the complaint is dismissed with costs and disbursements to the defendants.