Recently in Amadu v. Stratus Hacking Corp., a car accident case, the New York Supreme Court, Queens County held that plaintiff presented sufficient evidence to raise a triable issue of fact as to whether he suffered a “serious injury” within the meaning of Insurance Law Section 5102(d).
The “serious injury” issue is critical in an automobile accident case, since even cases where liability is “clear”, a plaintiff who has not sustained a “serious injury” may not sue in court to recover for “pain and suffering” in court.
Initially, the court explained the applicable law:
Under the “no-fault” law, in order to maintain an action for personal injury, a plaintiff must establish that a “serious injury” has sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a “serious injury”. When a defendant’s motion is sufficient to raise the issue of whether a “serious injury” has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury.
In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physician or the unsworn reports of plaintiff’s examining physician. Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant’s motion, to submit proof of serious injury in “admissible form”. Unsworn reports of plaintiff’s examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician’s personal examination and observations of plaintiff, is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a plaintiff’s serious injury. Unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a prima facie case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician’s own examination, tests and observations and review of the record rather than manifesting only the plaintiff’s subjective complaints. [A] chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice.
[T]he findings, which must be submitted in a competent statement under oath (or affirmation, when permitted) must demonstrate that plaintiff sustained at least one of the categories of “serious injury” as enumerated in Insurance Law § 5102(d). … [A] physician’s observation as to actual limitations qualifies as objective evidence since it is based on the physician’s own examinations.” [I]n the absence of objective medical evidence in admissible form of serious injury, plaintiff’s self-serving affidavit is insufficient to raise a triable issue of fact.
The court found that defendants presented sufficient evidence to establish their prima facie case of no serious injury, but that plaintiff presented sufficient evidence – including an attorney’s affirmation, a report of the Worker’s Compensation Board, plaintiff’s own affidavit, an affirmation of plaintiff’s treating physician, and a notarized affirmation of plaintiff’s chiropractor – to establish a triable issue of fact.
Plaintiff submitted medical proof that was contemporaneous with the accident showing range of motion limitations. Plaintiff has established a causal connection between the accident and the injuries. The affirmation submitted by plaintiff’s treating physician, Dr. Leo Kaledzi, sets forth the objective examination, tests, and review of medical records which were performed contemporaneously with the accident, approximately one (1) month after the accident, to support his conclusion that the plaintiff suffered from significant injuries, to wit: “strained lumbar spine” and “right ankle sprain.” Dr. Kaledzi’s affirmation details plaintiff’s symptoms, including lower back pain and pain in the right ankle. He further opines that the injuries sustained by the plaintiff in the accident were causally related to the motor vehicle accident of August 17, 2008. Furthermore, plaintiff has provided a recent medical examination detailing the status of his injuries at the current point in time. The affirmation of Dr. Kaledzi sets forth the objective examination, tests, and review of medical records which were performed on July 18, 2013 to support his conclusion that the plaintiff suffers from significant injuries, to wit: lumbosacral spine dergangement, strained lumbar spine, and sprained right ankle. He further opines that the injuries are permanent in nature, chronic and causally related to the motor vehicle accident of August 17, 2008. Clearly, the plaintiff’s experts’ conclusions are not based solely on the plaintiff’s subjective complaints of pain, and therefore are sufficient to defeat the motion.
Despite defendants’ contentions, there is no unexplained “gap in treatment” since Dr. Kaledzi affirms that plaintiff had physical therapy two to three times a week following his initial visit through January 2010, that plaintiff continued to see him for follow up visits from that time until October 2011 and at that time, there was nothing more he could do for him since he reached maximum results from the physical therapy.
Therefore, “[s]ince there are triable issues of fact regarding whether the plaintiff sustained a serious injury to his lumbar spine and right ankle, plaintiff is entitled to seek recovery for all injuries allegedly incurred as a result of the accident.”
The court also held that plaintiff presented sufficient evidence to create an issue of fact as to whether plaintiff met the so-called “90/180” category of serious injury. When evaluating evidence relating to this category,
[t]he record must contain objective or credible evidence to support the plaintiff’s claim that the injury prevented plaintiff from performing substantially all of his customary activities. When construing the statutory definition of a 90/180-day claim, the words “substantially all” should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment.
Plaintiff satisfied his burden:
Plaintiff includes an expert report of Dr. Kaledzi wherein Dr. Kaledzi renders an opinion on the effect the injuries claimed may have had on the plaintiff for the 180-day period immediately following the accident. Dr. Kaledzi affirms inter alia, that: plaintiff was unable to perform his job at all for three to four months following the accident due to injury from the accident. As such, plaintiff’s submissions were sufficient to establish a triable issue of fact as to whether plaintiff suffered from a medically determined injury that curtailed him from performing his usual activities for the statutory period.
However, the court denied plaintiff’s own cross-motion for summary judgment. Thus, while plaintiff presented sufficient evidence to establish that there are issues of fact for trial, the court declined to determine, as a matter of law, that plaintiff indeed suffered a “serious injury.”