This involves a case wherein the Court ruled that plaintiff’s injuries did not suffer a “serious injury” in the accident as defined by New York State Insurance Law which led for an order granting defendant summary judgment.
Plaintiff commenced the action against defendant allegedly for personal injuries sustained by plaintiff as a result of a car accident with defendant which occurred on November 20, 2009, at approximately 7:51 p.m., at or near the intersection of Guinea Woods Road and Jericho Turnpike, Old Westbury, County of Nassau, State of New York. The accident involved a 2008 Chrysler owned and operated by plaintiff and a 2003 Volkswagen owned and operated by defendant. It is plaintiff’s contention that the car accident occurred when defendant’s vehicle struck plaintiff’s vehicle in the aforementioned intersection when, defendant’s vehicle, while speeding, made a left turn in the intersection and failed to yield the right of way.
Defendant argued that plaintiff’s medical records establish that plaintiff had a preexisting medical history of lower back pain that pre-dates and is unrelated to the subject accident. Defendant submits that, on January 22, 2004, almost six years prior to the subject accident, plaintiff went to a physician with complaints of back pain from the proceeding year and admitted that the condition originated five to six years earlier. Defendant added that the medical records of plaintiff’s treating physician, further showed that plaintiff had pre-existing spinal injury, lumbar stenosis and pain of his lumbar spine for which he was treating from 2004 through 2006 and again in 2009 prior to the subject accident.
Based upon this evidence, the Court found that defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).
The burden now shifted to plaintiff to come forward with evidence to overcome defendant’s submissions by demonstrating the existence of a triable issue of fact that serious injuries were sustained. To support his burden, plaintiff submitted the Affirmation of his treating physician, plaintiff’s EBT testimony and the physician’s medical treatment records for plaintiff dated October 13, 2009 thought January 19,2010.
However, the Court noted that physician’s Affirmation (Plaintiff’s Affirmation in Opposition Exhibit A) fails to set forth any objective findings contemporaneous with the subject accident, as well as fails to set forth any quantified range of motion findings based on a recent examination of plaintiff. The physician provided no objective basis for any of his conclusions concerning his initial examination, nor for his most recent examination of plaintiff. Furthermore, in his Affirmation, the physician did not set forth the objective tests upon which he predicated his findings and conclusions and accordingly his Affirmation is insufficient to show whether plaintiff sustained serious injury under the permanent consequential limitation of use or significant limitation of use categories of New York State Insurance Law § 5102(d).
The Court said that absent any objective contemporaneous findings, plaintiff cannot establish the duration or cause of any limitations found by his treating physician during his recent examination of plaintiff.
With respect to plaintiff’s 90/180 claim, nowhere does plaintiff claim that, as a result of his alleged spinal injuries, he was “medically” impaired from performing any of his daily activities or that he was curtailed “to a great extent rather than some slight curtailment.”. In light of these facts, the Suffolk Court determined that plaintiff’s injuries do not satisfy the “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 daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment” category of Insurance Law.
We understand how painful not to be properly compensated upon another’s wrongful doing. Our New York Car Accident Lawyers from Stephen Bilkis and Associates can guide you through your case. It has offices strategically located within New York Metropolitan area, including Corona, New York.
Please note that our New York Car Accident Lawyers from Stephen Bilkis and Associates can recommend New York Spinal Injury Lawyers to further establish your claim.