THE “SERIOUS INJURY” THRESHOLD REQUIRES MORE THAN A “SLIGHT CURTAILMENT” OF DAILY ACTIVITIES
Colloquially referred to as the “90/180 Rule,” plaintiffs in countless cases arising out of New York motor vehicle accidents argue that the threshold for serious injury is met solely due to their failure to perform substantially all of their customary daily activities for ninety out of the first one hundred and eighty days following the date of loss. Associate, Nicole Licata-McCord Esq. recently succeeded on a motion for summary judgment brought pursuant to NYS Insurance Law §5102. The Honorable Judge Denise L. Sher found that the plaintiff failed to meet the serious injury threshold under New York State Insurance Law. Specifically, in regard to the “90/180 Rule”, §5102(d)(9) states a serious injury is proven when:
“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.”
In granting summary judgment in favor of the firm’s client, the Court ruled that more than a slight curtailment of a plaintiff’s daily activities is required for a “serious injury” to exist under the statute. Citing to the Court of Appeals Decision in Licari v. Elliot, Justice Sher noted that “a curtailment of the plaintiff’s usual activities must be ‘to a great extent rather than some slight curtailment.’” Her Honor went on to note that the law requires more than a minor, mild, or slight limitation, and that the same must be supported by credible medical evidence with an objective basis comparing a plaintiff’s current limitation to normal function. Factors to consider in this “curtailment” rule, includes, but are not limited to: (1) gaps in treatment; (2) intervening medical problems; & (3) a pre-existing/degenerative condition that would interrupt the chain of causation between the accident and the claimed injury.
The Court also agreed with the firms’ position regarding the lack of competent medical evidence of prompt or contemporaneous medical treatment. The underlying facts argued in support by Ms. Licata-McCord included a week long trip to Greece being taken by the plaintiff prior to making any physical complaints and prior to undergoing any causally related medical treatment. The course of physical therapy which ultimately spanned several months was argued as proof of a “serious injury” to no avail. The delay in treatment coupled with the relatively short period of physical therapy led the Court to rule in the firm’s favor and grant summary judgment dismissing the case based upon New York State Insurance Law §5102(d)(9).