DEFENSE LOSES NO-FAULT "SERIOUS INJURY" SUMMARY JUDGMENT MOTION; ITS DOCTOR FOUND CAR ACCIDENT VICTIM HAD LIMITED MOTION OF NECK, BACK & SHOULDER

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

Case: Taylor v. Taylor

Date: Sept. 27, 2011

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

Comment: Plaintiff/accident victim beats defense No-Fault threshold "serious injury" summary judgment dismissal motion. This decision gives us a clue as to the reason. It seems that the defense relied on the report of a neurologist who found that plaintiff Donna Speed couldn't completely move her neck, back or left shoulder.

This failure of the defense case means game over for this motion. But the defense gets another shot at trial and a jury could still find no "serious injury."

And what's the punishment to the defense for wasting the Court's and opposing counsel's time with an obviously defective position on this motion? Well, there is none.

It would be nice if the decision discussed the particulars of the underlying car or automobile accident, and gave us the date it occurred.

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RELATED POST:

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 lawyer Gary E. Rosenberg on Oct 7, 2011)

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In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated August 11, 2010, as granted the motion of the defendants Dorothy Taylor and Richard Williamson, and the separate motion of the defendant Craig Goodman, for summary judgment dismissing the complaint insofar as asserted against each of them 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, on the law, with one bill of costs payable by the defendants appearing separately and filing separate briefs, and the motions for summary judgment dismissing the complaint insofar as asserted against each of the defendants on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) are denied.

The defendants failed to meet their respective prima facie burdens of showing that the plaintiffs 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).

The defendants all relied on the affirmed medical report of Dr. Kuldip K. Sachdev, a neurologist who examined the plaintiff Donna Speed on October 8, 2009. During that examination, Dr. Sachdev noted significant limitations in the range of motion of the cervical and lumbar regions of Speed's spine, and significant limitations in the range of motion of her left shoulder. Such findings prevented the defendants from meeting their prima facie burdens of showing that Speed did not sustain a serious injury to those regions of her body within the meaning of Insurance Law Sec 5102(d) as a result of the subject accident (see Astudillo v. MV Transp., 84 A.D.3d 1289, 923 N.Y.S.2d 722; Rhodes v. Stoddard, 79 A.D.3d 997, 912 N.Y.S.2d 908; Kharzis v. PV Holding Corp., 78 A.D.3d 1122, 912 N.Y.S.2d 114; see also Artis v. Lucas, 84 A.D.3d 845, 921 N.Y.S.2d 910; Rocourt v. Alvelo, 79 A.D.3d 1120, 912 N.Y.S.2d 915; Mondevil v. Kumar, 74 A.D.3d 1295, 903 N.Y.S.2d 248; Smith v. Hartman, 73 A.D.3d 736, 899 N.Y.S.2d 648; Quiceno v. Mendoza, 72 A.D.3d 669, 897 N.Y.S.2d 643; Giacomaro v. Wilson, 58 A.D.3d 802, 872 N.Y.S.2d 180). Moreover, the defendants' respective motion papers failed to address Speed's claim, as set forth in her bill of particulars, that she sustained a medically‑determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary activities for not less than 90 of the 180 days immediately following the subject accident (see Aslam v. Hossain, 83 A.D.3d 749, 920 N.Y.S.2d 674; Reynolds v. Wai Sang Leung, 78 A.D.3d 919, 911 N.Y.S.2d 431; Udochi v. H & S Car Rental Inc., 76 A.D.3d 1011, 908 N.Y.S.2d 93; Strilcic v. Paroly, 75 A.D.3d 542, 903 N.Y.S.2d 905). Speed testified at her deposition that she essentially stopped working after the subject accident on advice of her doctor. The defendants' respective experts did not examine her until at least one year or more after the accident, and did not relate any of their findings to that category of serious injury for the period of time immediately following the subject accident.

As to the plaintiff Michael Taylor, the defendants' respective motion papers also failed to address his claim, as set forth in his bill of particulars, that he sustained a medically‑determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary activities for not less than 90 of the 180 days immediately following the subject accident. Taylor alleged in his bill of particulars that he was confined to his home and/or bed from the date of the subject accident. None of those defense experts related any of their findings to the 90/180-day category of serious injury for the period of time immediately following the subject accident.

Since the defendants failed to meet their respective prima facie burdens, it is unnecessary to consider whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Coscia v. 938 Trading Corp., 283 A.D.2d 538, 725 N.Y.S.2d 349).

Accordingly, the Supreme Court should have denied the motions for summary judgment dismissing the complaint insofar as asserted against each of the defendants.

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MORE RELATED POSTS:

SUMMARY JUDGMENT MOTION DENIED ON NO-FAULT THRESHOLD; BURDEN ON DEFENSE TO SHOW ACCIDENT VICTIM'S INJURIES WERE OLD (Posted by Brooklyn accident lawyer Gary E. Rosenberg on June 17, 2011)

DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S (Posted by Brooklyn accident lawyer Gary Rosenberg on Jul 30, 2010)

NO-FAULT THRESHOLD BOOBY TRAP (Posted by Brooklyn accident lawyer Gary E. Rosenberg on November 10, 2009)

ACCIDENT VICTIM LOSES NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION BECAUSE HIS LAWYERS SUBMIT CHIROPRACTOR AFFIRMATION (Posted by Brooklyn accident lawyer Gary E. Rosenberg on Oct 18, 2011)

BRONX CAR ACCIDENT VICTIMS LOSE SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD (Posted by Brooklyn accident lawyer Gary E. Rosenberg on June 21, 2011)

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