SUMMARY JUDGMENT GRANTED UNDER NEW YORK STATE INSURANCE LAW SECTION 5102: “SERIOUS INJURY THRESHOLD”

Sobel Pevzner, LLC, successfully secured the dismissal of an action brought against a Public Authority client.  The firm moved for summary judgment based upon the New York Insurance Law §5102(d), commonly referred to as the “Serious Injury Threshold.”  The decision dismissing the Complaint was delivered by The Honorable W. Gerard Asher, Justice for the Suffolk County Supreme Court.

It is well established that a plaintiff in a motor vehicle accident can establish a “serious injury” as same is defined by the statute in a variety of ways.  For example,  plaintiff can prove a causally related fracture, significant disfigurement, permanent consequential loss of use of a bodily organ or function.  In this particular case,  the plaintiff alleged that their injuries met the threshold under what is colloquially referred to as the “90 /180 Rule,” and were therefore defined as “serious” pursuant to NYS Insurance Law §5102(d)(9), which states in pertinent part:

“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.”

As the movant, the firm was required to and clearly met its initial burden to establish the lack of prima facie evidence of a serious injury.  This was accomplished through the proffer of competent medical evidence from the physicians who conducted the independent medical evaluations along with arguments based upon the plaintiff’s own medical records.

After the motion was fully briefed, the Court found that the Plaintiff failed to rebut the defense’s evidence by presenting objective proof of a qualifying injury in admissible form. The Court held that plaintiff’s significant and unexplained gap in medical treatment, along with the unsworn/uncertified doctor reports submitted in opposition to the motion for summary judgment to rebut defendant’s argument, did not classify as “competent medical evidence” and dismissal of the Complaint was therefore warranted.