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On June 10, 2007, a woman, driving a Nissan was rear-ended by a BMW as it was stopped at the intersection of Merrick Road and East Shore Drive. As a result of this accident the woman sustained a spinal injury: she had swollen discs and a severe sprain of the lumbar spine. She asserts that two weeks after the accident occurred, she was ordered to rest in bed by her Manhattan doctor. She was also confined to her home and could not go to work until after another four weeks.
She claims that after the accident, she could no longer play volleyball or do gardening. She cannot stand or sit for more than thirty minutes. Fifteen months after the accident, the woman joined a local gym where her favourite workout was on the recumbent bicycle.
The defendant owner and driver of the BMW that allegedly rear-ended her Nissan filed a motion for summary judgment. He claims that the complaint should be dismissed because the woman failed to state that the spinal injury she sustained is a serious injury. She also failed to state which classification of serious injury she falls under. There are five categories of serious injury under the Insurance Law: death, dismemberment, significant disfigurement, fracture or loss of a fetus, total loss of use of a body organ, function or system.
The Long Island owner and driver of the BMW asserts that the woman did not suffer from a permanent limitation of the use of her spinal or cervical spine. He submitted the medical records from the hospital emergency room and the initial findings at the time of her admission into the hospital right after the accident and these do not show any physical limitation or loss of range of motion. The orthopaedic surgeon concluded that the range of motion tests he conducted on the woman showed that her ranges of motion were within normal range. He also made a finding that the pain she feels and the spinal injury she complains of may as well be caused by a genetic condition (brittle bone disease) that has largely been undiagnosed. His findings also state that the woman suffered sprain of the muscles along the spine but that these will resolve themselves and have resolved themselves in time.
The woman then submitted her own affidavit. Her opposition to the motion for summary judgment includes her claim that even when the initial findings at the time of the accident show that there was no permanent limitation to the use of her cervical and lumbar spine, still, the findings of the doctors much later which can prove that her spinal injury was caused by the accident is also sufficient to raise a material issue of fact.
The woman submitted the affidavit of her chiropractor who treated her once immediately after the accident and the second time four years later just before the trial. She also submitted unsworned and unaffirmed statements and findings of her attending physician and an orthopaedic surgeon.
The only question before the Court is whether or not the motion for summary judgment filed by the owner and driver of the BMW should be granted.
The Court held that when a motion for summary judgment is filed, it is the duty of the person who filed it to prove that he is entitled to the summary judgment. When he succeeds in proving that he is entitled to the summary judgment, the burden of proof then shifts to the person opposing it to prove that a material issue of fact still exists that needs to be tried before a jury.
The Court held that the owner and driver of the BMW has proved that he is entitled to the summary judgment. He proved that the spinal injury complained of by the woman does not fall under any of the five categories of serious injury for which she can claim compensation in damages.
The Court also held that the woman failed to submit acceptable and admissible proof that there are still material issues of fact that need to be tried.
Are you like the woman in this case? Did you get injured as a consequence of an automobile accident? Before you file a suit in damages, contact a New York City Spinal Injury lawyer who can advice you if you have a viable cause of action. You need the advice of a New York Spinal Injury attorney to see if your injury falls under the category of a serious injury for which you can be compensated. At Stephen Bilkis and Associates their NYC Spinal Injury attorneys are trained to assess if your injuries can be legally compensated. Call the NY Spinal injury lawyers at Stephen Bilkis and speak to them to know for sure if you have the law on your side.