Whiplash Settlement Case Where Plaintiff Presents Insufficient Evidence of Serious Injury*

In this whiplash settlement action, the defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff, Yav Liska, did not sustain a "serious injury" within the meaning of Insurance Law. The motion was granted for the reasons below.

The plaintiff, driving his own vehicle, was involved in a car accident with a vehicle operated by defendant Alex Shiro and owned by Rod Dakhar. Each party contends that the other is responsible for the accident.

Liska asserts that while he was stopped at a red light his vehicle was struck from behind by the Dakhar vehicle. The defendants contend that Liska passed the red light, stopped in the middle of the intersection and then put his car in reverse and backed into their vehicle. In any event, as a result of this incident, the plaintiff claims to have sustained a serious injury to his left shoulder and other whiplash-type injuries.

The defendant submits reports of a neurologist, an orthopedist and a radiologist. Each of these doctors performed a medical exam on the plaintiff as part of this whiplash settlement case. The defendants also argue that the plaintiff's treatment history indicates a significant, unexplained gap in treatment.

The neurological exam was within normal limits. There was no basis to support any claims of radiculopathy or median neuropathy or other whiplash-like injuries. The radiologist´s report reveals no herniated discs or whiplash injury and only normal degenerative changes to the plaintiff's cervical spine.

A week after the collision, the plaintiff began treatment with a chiropractor. The plaintiff offers the reports of two doctors. The chiropractor says he is suffering whiplash injury, tendonitis of the supraspinatus tendon, and a slight Hill-Sach's deformity in his left shoulder.

The MRI reflects tendonitis of the supraspinatus tendon and the slight Hill-Sach's deformity but fails to relate either to the collision. Liska attributes his cessation of all treatment to a lack of insurance benefits.

If the moving party makes the requisite showing, the burden then shifts to the opposing party to come forward with proof in admissible form to raise a triable issue of fact. A separate trial would then be required to determine fault and the amount of any whiplash settlement.

The party opposing a motion for summary judgment on the threshold "serious injury" issue must come forward with objective proof of his or her injury to raise a triable issue. Subjective complaints alone are not sufficient. However, either "an expert's designation of a numeric percentage of a plaintiff's loss of range of motion" or "an expert's qualitative assessment of a plaintiffs' condition" may substantiate a claim of serious injury.

In deciding a summary judgment motion, the court must bear in mind that issue finding rather than issue determination is the key to summary judgment. Furthermore, since summary judgment is a drastic remedy that deprives a litigant of his or her day in court, the evidence adduced on the motion must be liberally construed in the light most favorable to the opposing party.

Here, the defendants have met their initial burden by producing proof to show the absence of any material issue of fact. It is clear that the plaintiff has failed to satisfy his burden by presenting sufficient medical evidence to create triable issues of fact on any of the claimed sections of serious injury pursuant to Insurance Law.

The defendants' motion for summary judgment was therefore granted in its entirety and the complaint of Liska was dismissed in its entirety. The plaintiff was not offered a whiplash settlement.