CAR ACCIDENT VICTIM'S CASE DISMISSED FOR NO "SERIOUS INJURY"; HIS DOCTOR(S) FAILED TO DIFFERENTIATE HIS INJURIES FROM TWO ACCIDENTS

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

Case: Arzu v. Rahmanan

Date: Jan. 25, 2012

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

Comment: Defense made a summary judgment motion for car accident victim=s alleged failure to clear New York's No-Fault "serious injury" threshold. Plaintiff lost and case dismissed for an obvious reason: he had a second accident after the one in this case, and his doctor(s) failed to distinguish the injuries from the two accidents.

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Order (Elizabeth A. Taylor, J.), dated July 7, 2011, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In support of his motion for summary judgment, defendant made a prima facie showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) as a result of the vehicular accident. Defendant submitted affirmed reports of an orthopedist and neurologist reporting normal ranges of motion in all of plaintiff's tested body areas, specifying the objective tests undertaken, and concluding that plaintiff had recovered without disability from sprain and strain injuries (see Duran v. Hoy, 89 AD3d 541 [2011]). Defendant also sufficiently refuted plaintiff's 90/180-day claim (see id.; Hernandez v. Adelango Trucking, 89 AD3d 407 [2011]; Porter v. Bajana, 82 AD3d 488 [2011]).

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RELATED POSTS:

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

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In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's examining physician offered no objective basis or reason, other than the history provided by plaintiff, for concluding that the injuries resulted from this accident and not a subsequent automobile accident in which plaintiff allegedly sustained injuries (see Shu Chi Lam v. Wang Dong, 84 AD3d 515, 516 [2011]; Lunkins v. Toure, 50 AD3d 399 [2008]). Plaintiff's failure to adequately address the effect of the second accident on his alleged limitations rendered speculative his doctor's opinion that the injuries claimed herein were related to the subject accident (see Zhijian Yang v. Alston, 73 AD3d 562, 563 [2010]; Lunkins v. Toure, 50 AD3d at 399-400). Nor did plaintiff substantiate his 90/180-day claim. That plaintiff was placed on limited duty upon his return to work following a five‑day absence is insufficient to raise a triable issue (see Perez v. Corr, 84 AD3d 646, 647 [2011]).

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