AUTO ACCIDENT VICTIM HAD PRE-EXISTING KNEE PROBLEM & DOESN'T PROVE NEW INJURY; SUMMARY JUDGMENT GRANTED TO DEFENSE ON NO-FAULT THRESHOLD

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

Case: Pines v. Lopez

Date: Oct. 18, 2011

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

Comment: Another car accident case. Another defense No-Fault "serious injury" threshold summary judgment motion that succeeds in having the case dismissed. The accident victim needed a knee replacement BEFORE the accident. It's not clear from this appeals decision if he had the knee replacement surgery or not.

Of interest here is the court's finding that plaintiff failed to document "range of motion" limitations from after the accident. This requirement has only very recently been discredited by New York State's highest Court, the Court of Appeals, in a case entitled Perl v. Meher which was decided on November 22, 2011, and is the subject of a future blog post.

However, it's unlikely that the result in this case would be any different, given the severity of the plaintiff's pre-existing condition, and the questions of whether this accident actually caused him a new injury.

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RELATED POSTS:

CHIROPRACTOR AFFIDAVIT HELPS AUTOMOBILE ACCIDENT VICTIM DEFEAT DEFENSE "SERIOUS INJURY" SUMMARY JUDGMENT THRESHOLD MOTION (Posted by Brooklyn accident attorney Gary E. Rosenberg on Nov 3, 2011)

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

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

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

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Order, Supreme Court, New York County (George J. Silver, J.), entered September 28, 2010, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing plaintiff's claims for the permanent consequential limitation and significant limitation categories of serious injury within the meaning of Insurance Law Sec. 5102(d), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint in its entirety.

Defendant established prima facie entitlement to judgment as a matter of law on plaintiff's claims of permanent and significant limitations. Defendants submitted, inter alia, the affirmed reports of an expert orthopedist, who, after reviewing plaintiff's medical records and examining him, found no limitations in the range of motion of plaintiff's knees and opined that plaintiff's injuries were the result of severe degenerative arthritis in both knees.

In opposition, plaintiff did not raise a triable issue of fact. He failed to present admissible evidence of contemporaneous range of motion limitations following the accident (see Batts v. Medical Express Ambulance Corp., 49 AD3d 294 [2008]). The medical records of plaintiff's orthopedic surgeon also documented that plaintiff previously had been diagnosed with degenerative arthritis in his knees and that the eventual need for a total knee replacement had been anticipated for several years prior to the subject accident. Furthermore, plaintiff's medical expert failed to address two prior accidents in which plaintiff had injured his knees, or to "address how plaintiff's current medical problems, in light of [his] past medical history, are causally related to the subject accident" (Style v. Joseph, 32 AD3d 212, 214 [2006]; see Zhijian Yang v. Alston, 73 AD3d 562, 563 [2010]).

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