Personal injury-threshold decision

In order to have a successful automobile personal injury case in New York, a person's injuries must meet a minimal threshold. If the injuries don't meet the threshold, or a person stops treating, defendants will often ask the Court to dismiss the case in a "summary judgment motion." However, as recently pointed out by the Appellate Division, the Court will not automatically dismiss these cases. In the recent case, the Court found that the plaintiff "established the existence of a triable issue of fact constituting a meritorious opposition to" Thornton's motion (Political Mktg., Int'l., Inc. v Jaliman, 67 AD3d at 662; see CPLR 5015[a][1]). The plaintiff provided competent medical evidence establishing that the alleged injuries to the lumbar region of her spine constituted a serious injury under the permanent consequential limitation of use and/or significant limitation of use categories of Insurance Law § 5102(d) (see Dixon v Fuller, 79 AD3d 1094, 1094-1095). She also provided a reasonable explanation for a cessation of medical treatment (see Pommells v Perez, 4 NY3d 566, 574; Abdelaziz v Fazel, 78 AD3d 1086).

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

Serious personal injury

In order to be successful on an automobile "personal injury" claim, a plaintiff must prove that her injuries met the personal injury "threshold." What injuries meet the threshold is a topic often discusses by the Courts. Recently the Court in Ballard v. Cuneen, 2010 NY Slip Op 06771, found that the defendant's failed to allege sufficient information establishing that the plaintiff's injuries did not meet the threshold. In particular the Court held that the defendant's own doctor found that the plaintiff had limited range of motion in her spine. Additionally, the Court held that the defendant's never addressed plaintiff's claim that that she sustained a medically-determined injury or impairment of a nonpermanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

Family Gets $29M for Fatal Crash Caused by Overloaded Truck

In Estate of Malkin v. Transport Expressway Inc., an Orange County New York jury awarded over $29 million to a family that was involved in a fatal motor-vehicle accident on the New York State Thruway on January 25, 2002. The plaintiff driver was driving on the northbound side of the New York State Thruway, near an underpass that crossed beneath Pleasant Hill Road, in Mountainville, New York. The plaintiff driver's husband was a front-seat passenger and the couple's 15 year old daughter was a rear-seat passenger. At the time of the accident, a trucker in front of the family attempted to travel beneath the overpass, but the truck's payload struck the underside of the overpass causing a freight container to fall off the truck and shatter on the highway. As the plaintiff driver tried to avoid the container, the family's vehicle was hit by a second truck causing it to go off the highway, killing the husband injuring his wife and daughter. The jury found that the accident was caused by negligent overloading of a tractor-trailer. www.foleygriffin.com

Inconsistent Expert Opinions Result in Denial of Summary Judgment

In Joseph v.Hummel, Ms. Joseph sued to recover for her injuries from a car accident. The defendants alleged that her injuries did not meet the "serious injury threshold" set forth by New York Insurance Law. They asked the Court to throw out the case and submitted affirmations of their expert doctors, Edward A. Toriello, M.D. (orthopedic surgeon) and Monette G. Basson, M.D. (neurologist), who stated that Ms. Joseph did not suffer a serious injury because her range of motion in the injured parts of her body were "normal". However, each doctor had a different opinion as to what "normal range of motion" was and had a different opinion on the actual range of motion the plaintiff had at the time of their defense medical examination. The judge stated that this was fatal to their application to dismiss the case and he denied their motion. www.foleygriffin.com