Serious injury threshold

One of the most common issues that we confront as personal injury attorneys is the question as to whether our client's injuries meet the minimum threshold required to bring a successful lawsuit in New York State. (Insurance Law § 5102(d)). The Courts often grapple with the question as to what is a serious physical injury. It is commonplace for defendants to move to dismiss plaintiff's claims based upon the theory that the plaintiff's injuries are inadequate as a matter of law. However, the Courts will look to the medical report of the defendant's doctor before deciding whether or not the defendant has met his/her burden establishing the lack of serious injury. Recently the Second Department held that based upon the defendant's doctor's report, the motion to dismiss should have been denied by the trial court. In this case, Britt v Bustamante, the defendants relied, inter alia, on the affirmed medical report of an orthopedist who examined the plaintiff more than three years after the accident, and noted significant range-of-motion limitations in the plaintiff's cervical spine. In view of the orthopedist's findings, the defendants failed to establish their prima facie entitlement to judgment as a matter of law