New York car accident attorneys must fight hard for their clients from the beginning of the case. New York defendants often seek summary judgment on the ground that the plaintiff did not sustain a “serious injury” as defined by New York insurance laws. Defendants will use independent medical examinations to show that the plaintiff’s injuries were not “serious.” Plaintiffs can successfully defeat these motions if they have records from their own doctors that show they have met the definition of a serious injury, as seen in one recent case.
The plaintiff filed suit, alleging a serious injury resulting from an automobile accident. According to the plaintiff, he had to brake suddenly to avoid hitting several mattresses in the roadway and was rear-ended.
The defendant moved for summary judgment on the ground the plaintiff had not suffered a serious injury. The plaintiff had testified he missed some days of work in the four weeks following the accident. He then missed two months of work after having shoulder surgery four months after the accident. However, the total number of days was less than 90. The court found the defendant had made a prima facie showing that the plaintiff had not suffered a serious injury in the 90/180 category.
The defendant did not, however, make a prima facie case regarding the “permanent consequential limitation of use of a body organ or member” or the “significant limitation of use of a body function or system” categories. The defendant submitted an independent medical examination by an orthopedist that indicated the plaintiff’s range of motion in his shoulder was “down.” The orthopedist did not provide information on the normal range of motion for the spine and noted that the test had been found “not to be a reliable indicator of disability.” The defendant also submitted an independent medical exam by a neurologist that stated the plaintiff did not have any objective neurological findings, but it did not include any range of motion testing. The court found that this evidence did not make a prima facie case for dismissal.
Since the defendant failed to meet his burden on all of the categories of serious injury, the court did not have to consider the plaintiff’s papers in denying the motion. The court did note, however, that it would have denied the motion even if the defendant had made the prima facie case. The plaintiff raised a triable issue of fact. He submitted a number of doctor’s affirmations, from the time of the accident and more recently, that showed he had significant restrictions in the range of motion in his back, neck, shoulder, and hips. The plaintiff had been examined in January 2018, and the report stated that his right shoulder was swollen and dysfunctional and that he has adhesive capsulitis. The doctor who conducted this exam stated the injuries were permanent and opined that the accident was the cause of his injuries and impairments.
In this case, the independent medical examinations were insufficient to support the defendant’s motion for summary judgment. Even if they had been sufficient to make the prima facie case, the plaintiff’s records from his own doctors showed he had significant and ongoing limitations. The plaintiff’s medical records raised a triable issue of fact and ensured that his case would continue.
If you have been injured in an automobile accident, the Law Offices of Marc S. Albert can help you. You need an experienced New York auto accident attorney on your side. Call 1.855.252.3788 to discuss your case.
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