DEFENSE DOCTOR SAYS INJURED ACCIDENT VICTIM FAKING, BUT FAILS TO EXPLAIN WHY HE THINKS SO; DEFENSE NO-FAULT "SERIOUS INJURY" SUMMARY JUDGMENT MOTION DENIED

Case: Roc v. Domond

Court: Supreme Court, Appellate Division, Second Department, New York

Date: October 18, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

Comment: Often with defense-requested medical examinations, it seems that defense doctors just make stuff up, possibly to please the defense lawyers and/or insurance companies paying them for their time. In this motor vehicle accident case, the defendant made a motion for summary judgment based on New York's No-Fault "serious injury" threshold, but it seems like the defense doctor pulled his examination findings "out of his butt." A careful reading of this appeals decision shows that the defense doctor said, essentially, that the injured plaintiff was faking or exaggerating. The appeals court didn't buy this, holding that the doctor failed to explain how he came to this conclusion. Another plaintiff prevails, setting back the forces of evil yet again, just a little bit.

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RELATED POSTS:

NO SUMMARY JUDGMENT TO DEFENSE ON NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION; CAR ACCIDENT VICTIM HAD KNEE SURGERY 4 MONTHS POST-ACCIDENT (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 7, 2011)

DEFENSE LOSES NO-FAULT "SERIOUS INJURY" SUMMARY JUDGMENT MOTION; ITS DOCTOR FOUND CAR ACCIDENT VICTIM HAD LIMITED MOTION OF NECK, BACK & SHOULDER (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 27, 2011)

UNEXPLAINED "GAP" IN TREATMENT KILLS CAR ACCIDENT VICTIM'S CASE (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 21, 2011)

CAR ACCIDENT VICTIM BEATS SUMMARY JUDGMENT MOTION; (AGAIN) NO CLUE WHY (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 23, 2011)

ACCIDENT VICTIM WINS "SERIOUS INJURY" MOTION; YET AGAIN, LITTLE CLUE WHY (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 24, 2011)

ACCIDENT VICTIM DEFEATS "THRESHOLD" SUMMARY JUDGMENT MOTION; CASE DOESN'T SAY WHY (Posted by Queens accident lawyer Gary E. Rosenberg on Oct 22, 2011)

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In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Rockland County (Garvey, J.), dated November 17, 2009, as granted the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Franck Vilsaint for summary judgment dismissing the complaint insofar as asserted against him on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) is denied.

The defendant Franck Vilsaint failed to meet his prima facie burden of showing that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957). In support of his motion, Vilsaint relied upon, inter alia, the affirmed medical reports of Dr. Ralph Purcell, the expert orthopedic surgeon who examined the plaintiffs on January 26, 2009. During those examinations, Dr. Purcell noted significant limitations in the range of motion in the cervical and thoracolumbar regions of the plaintiff Edison Charles' spine, and significant limitations in the range of motion in the cervicothoracic region of the plaintiff Edouard Roc's spine (see Artis v. Lucas, 84 AD3d 845; Ortiz v. Orlov, 76 AD3d 1000, 1001; Cheour v Pete & Sals Harborview Transp., Inc., 76 AD3d 989; Smith v. Hartman, 73 AD3d 736; Leopold v. New York City Tr. Auth., 72 AD3d 906). Although Dr. Purcell indicated that the "[d]iminished range of motion" noted was "subjective" in nature, he failed to explain or substantiate with any objective medical evidence the basis for his conclusion that the noted limitations in the plaintiffs' respective ranges of motion were self‑imposed (see Artis v. Lucas, 84 AD3d at 845; Iannello v. Vazquez, 78 AD3d 1121; Granovskiy v. Zarbaliyev, 78 AD3d 656; cf. Perl v. Meher, 74 AD3d 930; Bengaly v. Singh, 68 AD3d 1030, 1031; Moriera v. Durango, 65 AD3d 1024, 1024-1025; Torres v. Garcia, 59 AD3d 705, 706; Busljeta v. Plandome Leasing, Inc., 57 AD3d 469).

Since Vilsaint failed to meet his prima facie burden, it is unnecessary to determine whether the plaintiffs' papers submitted in opposition were sufficient to raise a triable issue of fact (see Artis v. Lucas, 84 AD3d at 846; Iannello v. Vazquez, 78 AD3d at 1121; Ortiz v. Orlov, 76 AD3d at 1001; Bengaly v. Singh, 68 AD3d at 1031; Coscia v. 938 Trading Corp., 283 A.D.2d 538).

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