Plaintiff Seeks Personal Injury Accident Settlement But Fails to Submit Valid Evidence of Serious Injury*

This is a motion by the defendants for judgment on the grounds that the plaintiff Cheve did not sustain a serious injury under Insurance law.

The plaintiff Cheve states he was injured in an automobile. The defendants contend the plaintiff did not sustain a serious injury. They note that he did not make any "pain" complaints to anyone at the scene.

The plaintiff went home after the collision and the following week he went to a chiropractor. He had treatments with the chiropractor for four to five months and did not receive medication for injuries.

The records in this personal injury accident settlement case indicate the plaintiff last received physical therapy in the summer of 2004, claiming that he stopped getting treatments because the Insurance Company refused to pay.

The plaintiff has been involved in four prior auto collisions. The plaintiff claims that his back bothers him, his right knee "gives out", and he cannot lift objects.

The defendants offered an orthopedist´s report where the doctor found the plaintiff had resolved cervical, lumbar and right knee sprains and had no orthopedic disabilities. The defendants also offered a report from a neurologist that stated the plaintiff had no neurological disability and could continue to work and perform his activities of daily living.

In a serious personal injury accident settlement, when a defendant seeks summary judgment that the plaintiff did not sustain a serious injury, the burden is on the defendant to prove that the plaintiff failed to meet the statutory threshold of "serious injury."

A defendant must make a prima facie showing that the plaintiff failed to sustain a serious injury through the submissions of affidavits or affirmations of medical experts who examined the plaintiff.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law by the submission of medical reports of an orthopedist and neurologist.

The plaintiff is now required to come forward with viable evidence to verify complaints of pain and limitation of motion. Based on the record the plaintiff has not met the burden.

Any subjective complaints of pain and limitation of motion by a plaintiff must be substantiated by valid certified objective medical findings based on a recent examination. The plaintiff is required to submit appropriate evidence as to why he ended therapy more than three years ago, but has failed to do so.

The plaintiff failed to submit any competent medical evidence that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the subject accident.

While the plaintiff may have sustained injuries, the record does not support the claim that he sustained a "serious injury" as defined by Insurance Law. Therefore judgement was rendered in favor of the defendants.