ACCIDENT VICTIM LOSES SUMMARY JUDGMENT ON NO-FAULT "SERIOUS INJURY" THRESHOLD; ALSO BUS FACED EMERGENCY IN CROSS-OVER ACCIDENT AND IS NOT LIABLE

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

Case: Vega v. MTA Bus Company

Date: June 12, 2012

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

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Order, Supreme Court, New York County (George J. Silver, J.), entered October 11, 2011, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint based on the grounds of lack of negligence and failure to establish a serious injury under the permanent loss, permanent consequential and significant limitation categories 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.

Defendants made a prima facie showing that defendant bus driver acted reasonably in an emergency situation not of his own making and thus was not negligent (see Caristo v. Sanzone, 96 N.Y.2d 172, 174, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001]; Rahimi v. Manhattan & Bronx Surface Tr. Operating Auth., 43 A.D.3d 802, 803, 843 N.Y.S.2d 557 [2007]). Indeed, the bus driver testified that the bus was crossing an intersection when a car, traveling in the opposite direction, crossed over the double yellow lines and cut in front of the bus in order to make a left turn, forcing the bus driver to apply the brakes. Plaintiff's testimony that the bus driver was "speeding" was insufficient to raise a triable issue of fact (see Alston v. American Tr., Inc., 82 A.D.3d 546, 547, 919 N.Y.S.2d 15 [2011]).

Defendants also made a prima facie showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law Sec. 5102(d) by submitting expert medical reports finding normal ranges of motion in the claimed affected body parts and no objective evidence that any limitations resulted from the accident (see Spencer v. Golden Eagle, Inc., 82 A.D.3d 589, 590, 920 N.Y.S.2d 24 [2011]). The finding of a minor limitation in plaintiff's lumbar spine by one of defendants' physicians was "insignificant for purposes of Insurance Law Sec. 5102(d)" (Rosa-Diaz v. Maria Auto Corp., 79 A.D.3d 463, 464, 913 N.Y.S.2d 51 [2010]). In opposition, plaintiff failed to raise a triable issue of fact, since she did not submit any objective evidence of limitations based on a recent examination of any of the subject body parts (see Shu Chi Lam v. Wang Dong, 84 A.D.3d 515, 516, 922 N.Y.S.2d 381 [2011]; Townes v. Harlem Group, Inc., 82 A.D.3d 583, 584, 920 N.Y.S.2d 21 [2011] ). The most current medical evidence upon which plaintiff relied was the affirmed report of one of her treating physicians, outlining treatment she received in 2007, nearly three years before defendants' experts' findings of full range of motion (see Zambrana v. Timothy, 95 A.D.3d 422, 943 N.Y.S.2d 92 [2012]).

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