DEFENSE "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION DENIED; ACCIDENT VICTIM'S DOCTOR'S AFFIDAVIT RAISE ISSUE OF FACT AS TO BACK AND SHOULDER INJURIES

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

Case: Young Chool Yoo v. Rui Dong Wang

Date: Oct. 25, 2011

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

Comment: Car accident victim beats defense No-Fault threshold "serious injury" summary judgment motion; the case is saved. This decision has some "goodness" in it.

First, the Court nicely discusses the injured plaintiff's back and, especially, shoulder injury. We are shown the type of affirmation submitted by plaintiff's treating doctor in order to beat the motion.

Second, and equally helpful, is the appeals court's disregard of the findings of "degeneration" to the accident vicitm's spine, as stated in the defense expert's reading of plaintiff's MRI films--the court was thus NOT persuaded that the claimed injuries were pre-existing (and thus not from the accident). It is rather unusual for a decision to name a radiologist but it is particularly satisfying here, as this defense-hired radiologist is well know by plaintiffs' personal injury lawyers as a defense hack, who, in my personal experience, almost never finds an accident-related injury on an accident victim's MRI film when being paid by a defense insurance company or defense law firm to read the MRI film.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lebowitz, J.), dated August 2, 2010, which granted that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

ORDERED that the order is reversed, on the law, with costs, and that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) is denied.

The Supreme Court erred in determining that the plaintiff did not plead any injuries with respect to his left shoulder in his bill of particulars. The plaintiff clearly alleged in his bill of particulars that he sustained hypertrophic acromioclavicular joint changes with encroachment upon the supraspinatus tendon, which is found in the shoulder. Moreover, the plaintiff testified at his deposition that he injured his left shoulder as a result of the subject accident, and the defendant's examining orthopedic surgeon examined this region of the plaintiff's body when he examined the plaintiff on December 17, 2009, and reviewed the agnetic resonance imaging (hereinafter MRI) report of the plaintiff's "AC joint" as part of his preparation to examine the plaintiff. Therefore, the defendant cannot claim surprise in this case concerning the alleged injury to the plaintiff's left shoulder, since the defendant's own expert examined that region of the plaintiff's body.

The Supreme Court properly determined that the defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176; see also Giraldo v. Mandanici, 24 A.D.3d 419, 805 N.Y.S.2d 124).

In opposition, however, the plaintiff raised a triable issue of fact through the affirmation of Dr. Benjamin Chang, the plaintiff's treating physician. In his affirmation, Dr. Chang concluded, based on his contemporaneous and most recent examinations of the plaintiff, which revealed significant limitations in the lumbar regions of the plaintiff's spine and left shoulder, that the plaintiff's injuries were permanent. Dr. Chang opined that the plaintiff sustained a permanent consequential limitation of use and/or a significant limitation of use of those areas as a result of the subject accident. Thus, Dr. Chang's findings concerning the plaintiff were sufficient to raise a triable issue of fact as to whether, as a result of the subject accident, the plaintiff sustained a serious injury to the lumbar region of his spine and/or left shoulder under the permanent consequential limitation of use and/or the significant limitation of use categories of Insurance Law Sec. 5102(d) (see Dixon v. Fuller, 79 A.D.3d 1094, 913 N.Y.S.2d 776; Gussack v. McCoy, 72 A.D.3d 644, 897 N.Y.S.2d 513).

Contrary to the defendant's contention, the plaintiff adequately explained the cessation in his treatment in this case through his affidavit and the affirmation of Dr. Chang (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Khaimov v. Jing Fan, 87 A.D.3d 1055, 929 N.Y.S.2d 762).

The defendant's contention that the plaintiff failed to address the issue of degeneration in the lumbar region of his spine raised by the defendant's radiology expert, Dr. Sondra Pfeffer, also is without merit. Dr. Chang concluded in his affirmation, based upon his review of the MRI of the lumbar region of the plaintiff's spine, as well as his examinations of the plaintiff, that the plaintiff's injuries were caused by the subject accident, and were not caused by degenerative disease. This was sufficient to address the issue of degeneration raised by the defendant's expert (see Tai Ho Kang v. Young Sun Cho, 74 A.D.3d 1328, 1330, 904 N.Y.S.2d 743; Whitehead v. Olsen, 70 A.D.3d 678, 894 N.Y.S.2d 93; Modeste v. Mercier, 67 A.D.3d 871, 888 N.Y.S.2d 427). Accordingly, that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) should have been denied.

The plaintiff's contention concerning that branch of the defendant's motion which was for summary judgment dismissing the complaint on the ground that the defendant did not breach any duty to the plaintiff is not properly before this Court. That branch of the motion was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v. Katz, 68 A.D.2d 536, 542-543, 418 N.Y.S.2d 99).

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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 injury lawyer Gary E. Rosenberg on Oct 27, 2011)

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