Defense Gets Summary Judgment in Car Accident "Serious Injury" Motion Second Time Where Plaintiff Lied about Prior Accidents

Case: Torres v. Gamma Taxi Corp.

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

Date: 7/10/12

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

**************************************************

RELATED POSTS:

DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION NICELY DEFEATED BY ACCIDENT VICTIM

No-Fault "serious injury"

CAR ACCIDENT VICTIM HAS SHOULDER SURGERY; BEATS DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION

**************************************************

Facts: Interesting motor vehicle accident case. The defense applied to the Court for summary judgment dismissing the plaintiff's complaint, claiming plaintiff failed to breach New York's No-Fault "serious injury" threshold. The motion was denied by the Court and the case went forward.

The defense then made another motion, basically, seeking a "do over." This was by way of a motion for "renewal." In order to be permitted to "renew" a prior motion, the party seeking the renewal has to show the court that it uncovered new evidence not previously available to it.

Here the defense found evidence that the plaintiff had been in two accidents prior to this one, where he injured the same parts of his body that he was suing for in this case. Also, when he testified at his deposition, the plaintiff had been dishonest about this two prior accidents and the injuries he suffered in them. (This is guaranteed to make a Court dislike you.)

The defense went the extra mile here and got a radiologist to say that plaintiff's MRI tests showed degenerative or age-related problems and no injury due to this accident. The defense also had a neurologist look at all the records, including those from plaintiff's two prior accidents, and give an opinion that the plaintiff's injuries were the same as before; there was no new injury for this accident (for which plaintiff could recover).

Plaintiff's lawyers went out and found an expert to say that plaintiff's injuries were, in fact, from this accident.

Held: The opinion of plaintiff's expert physician is "speculative." Renewal is granted, and, upon renewal, the defense is granted summary judgment. But there are two dissenting appeals judges.

Dissent: In a refreshing show of honesty (and spunk) the dissent reviews the plaintiff's records and says that he is not really claiming the same injuries. The dissent actually comes out and says that the court should not let what the majority of the Court calls the accident victim's "lack of candor" affect the result. The dissent would deny the defense summary judgment motion.

Categories