PLAINTIFF WHO QUIT MEDICAL TREATMENT LOSES TO DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD MOTION

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

Case: Adelis Torres v. Marilyn S. Posy

Date: Feb. 7, 2012

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

Comment: This decision's a little thin, but nothing we haven't seen before.

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RELATED POSTS:

UNEXPLAINED "GAP" IN TREATMENT KILLS CAR ACCIDENT VICTIM'S CASE(Posted by Brooklyn injury lawyer Gary E. Rosenberg on Oct 21, 2011)

AUTO ACCIDENT VICTIM HAD PRE-EXISTING KNEE PROBLEM & DOESN'T PROVE NEW INJURY; SUMMARY JUDGMENT GRANTED TO DEFENSE ON NO-FAULT THRESHOLD(Posted by Brooklyn injury lawyer Gary E. Rosenberg on Nov 30, 2011)

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In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), dated May 13, 2011, which denied their 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 reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The defendants met their 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). Although the plaintiff alleged that she sustained certain injuries to her right knee as a result of the subject accident, the defendants submitted competent medical evidence establishing, prima facie, that those alleged injuries did not constitute a serious injury within the meaning of Insurance Law Sec. 5102(d) (see Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180), and, in any event, were not caused by the subject accident (see Jilani v. Palmer, 83 A.D.3d 786, 787, 920 N.Y.S.2d 424). In addition, although the plaintiff alleged that she sustained a serious injury under the 90/180-day category of Insurance Law Sec. 5102(d) as a result of the subject accident, the defendants submitted evidence establishing, prima facie, that she did not sustain such an injury (see McIntosh v. O'Brien, 69 A.D.3d 585, 587, 893 N.Y.S.2d 154).

In opposition, the plaintiff, who failed to adequately explain a cessation of her medical treatment (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278; Vasquez v. John Doe # 1, 73 A.D.3d 1033, 1034, 905 N.Y.S.2d 188), failed to raise a triable issue of fact (see Pommells v. Perez, 4 N.Y.3d at 579, 797 N.Y.S.2d 380, 830 N.E.2d 278). Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.

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