Defense No-Fault Serious Injury Dismissal Denied Where Their Doctor Doesn't Give Reason for Finding That Plaintiff's Limitation of Lumbar Motion Was Self-Imposed

Case: India v. O'connor

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

Date: 7/25/12

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

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Facts: This is a rather plain and simple motor vehicle accident case. Defendants made a motion to the court to have this case thrown out on the accident victim's alleged failure to breach New York's No-Fault "serious injury" threshold.

This case doesn't give us too many facts. We know the injury is to the plaintiff's lumbar spine (or lower back). Plaintiff's doctor did a simple test for "range of motion." This means that the doctor wrote down that the accident victim had limited ability to bend his back in certain directions. From this decision we don't know which directions or how bad the limitation is.

Defendants' so-called independent medical expert found that the plaintiff's limitation of motion in his lumbar spine was "self-imposed." This is legal-speak for saying that the plaintiff was faking his injury when he was examined by the doctor.

The lower court dismissed (threw out) the plaintiff's case on the basis of his failure to meet the No-Fault "serious injury" threshold. This appeal followed.

Held: Defendants' doctor didn't give his reason for saying that the plaintiff's range of motion limitations in his lumbar spine were "self-imposed." Thus, defendants fail to even meet their preliminary burden of proof as the parties seeking summary judgment and their motion is denied. This case is re-activated and restored.

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