CHIROPRACTOR AFFIDAVIT HELPS AUTOMOBILE ACCIDENT VICTIM DEFEAT DEFENSE "SERIOUS INJURY" SUMMARY JUDGMENT THRESHOLD MOTION

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

Case: Kanarad v. Setter

Date: Aug. 30, 2011

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

Comment: Plaintiff/car or auto accident victim beat defense New York State No-Fault "serious injury" threshold summary judgment dismissal motion. How?

It seems that the plaintiff's chiropractor put in an excellent, detailed affidavit. (We all know that the attorneys write these, don't we?)

There is a least a little detail in the decision, below.

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In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated January 31, 2011, which denied his motion 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).

ORDERED that the order is affirmed, with costs.

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, 352, 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).

However, in opposition, the plaintiff raised a triable issue of fact through the affidavit of his treating chiropractor, Dr. Doug Wright. Dr. Wright concluded, based on his contemporaneous and most recent examinations of the plaintiff, which revealed significant limitations in the cervical and lumbar regions of the plaintiff's spine, and his review of the plaintiff's magnetic resonance imaging reports, which showed, inter alia, disc bulges in the cervical and lumbar regions of the plaintiff's spine, that the plaintiff's injuries were permanent and the range‑of‑motion limitations were significant (see Dixon v. Fuller, 79 A.D.3d 1094, 1095, 913 N.Y.S.2d 776; Harris v. Boudart, 70 A.D.3d 643, 644, 893 N.Y.S.2d 631). Dr. Wright further opined that the plaintiff's cervical and lumbar injuries and observed range‑of‑motion limitations were causally related to the subject accident (see Harris v. Boudart, 70 A.D.3d at 644, 893 N.Y.S.2d 631). Therefore, Dr. Wright's affidavit was 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 cervical and lumbar regions of his spine 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 at 1095, 913 N.Y.S.2d 776; Gussack v. McCoy, 72 A.D.3d 644, 897 N.Y.S.2d 513).

Accordingly, the Supreme Court properly denied the defendant's motion 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).

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