Jury Verdict Tossed on Appeal for Failure to Meet "90 of 180 Day" No-Fault Serious Injury Threshold

Case: Nunez v. Motor Vehicle Accident Indemnification Corporation

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

Date: June 20, 2012

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

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Facts: What do you do when you're crossing the street, a car hits you and takes off and can't be identified. Legally, what can a hit-and-run accident victim do?

Believe it or not, if you own a car or live with a family member that owns a car, you may be able to recover "uninsured motorist" benefits from that car's own insurance policy, even if it had nothing to do with the accident and was, say, parked in your driveway at the time you got hurt.

What about people that don't have access to car insurance policy? For them the insurer of last resort is a public agency that few outside New York's legal or accident game have ever heard of: the Motor Vehicle Accident Indemnification Corporation ("MVAIC"). For car accident victims this agency will provide No-Fault insurance benefits and pay for personal injury damages up to the New York State's legal minimum insurance limits.

This bring us to today's case.

The injured plaintiff was crossing the street and struck by a never-identified hit-and-run vehicle.

MVAIC forced plaintiff to go a jury trial, where the jury awarded her $33,360. The defense (MVAIC) objected that plaintiff had not breached the New York No-Fault "serious injury" thresholdand was not entitled to recover any damages award at all.

The issue centered upon whether plaintiff had met the 90/180 day category of "serious injury." Did plaintiff prove that she couldn't engage in her usual and customary activities (courts generally look at time missed from work) for 90 out of the first 180 days after the accident?

The lower court judge said that the accident victim proved her case.

Held: The appeals court disagrees and reverses the decision of the lower court. While plaintiff had a doctor testify at trial, the doctor did not say WHY the plaintiff's injuries left her unable to do her usual activities for 90 out of the first 180 days after the accident.

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