BRONX COUNTY SUPREME COURT: COMPLAINT DISMISSED FOR FAILURE TO PROVE SERIOUS INJURY UNDER NY INSURANCE LAW
Sobel Pevzner, LLC, counsel for the defendant in an action arising out of a multi-vehicle accident successfully moved for summary judgment dismissing the personal injury claims of two plaintiffs in a single action in the Bronx County Supreme Court. Generally regarded as one of the most plaintiff friendly venues, the firm was confronted with a case arising out of a hit in the rear and thus liability was almost a certainty as against the firm’s client. However, as is well known in New York State, to prevail in a personal injury action requires a plaintiff to meet a three prong test: legal fault for the happening of the accident, causally related personal injuries, and as was argued by the firm in the instant case, injuries that meet the “threshold” for serious injury as under the law.
As defined by New York State Insurance Law Section 5102(d) a “serious injury” must fit into one of the following nine specifically defined categories:
(1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of fetus; (6) permanent loss of use of a body organ, member function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; & (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
It is well settled that any injury outside of the stringent objective definition of “serious injury” provided above, is incapable of supporting a claim to recover for pain and suffering arising out of a motor vehicle accident. This personal injury action began when two plaintiff’s brought suit alleging injuries that resulted from a 2011 rear-end motor vehicle accident. In her decision, the Honorable Sharon A.M. Aarons, found that the plaintiffs’ claimed injuries, being proven only to the extent of a minimal 5 degrees of loss in range of motion, failed to raise a triable issue of fact in regard to 5102(d)(7)(8)(9). The key component to the motion for summary judgment often lies in the affirmations of the defense’s examining physicians. To qualify as a serious injury, a plaintiff must submit in admissible form, evidence that the alleged injuries are medically determined to qualify under the statute. Oftentimes, a plaintiff will attempt to oppose a dispositive motion based solely upon the medical records or unsworn statements of a treating doctor.
In successfully arguing in favor of summary judgment, Sobel Pevzner, LLC supported its motion with ample admissible evidence and the Court was compelled to rule in the client’s favor.