Plaintiff Raises Triable Issue of Fact that Knee Injury Was a “Serious Injury” Under Insurance Law 5102(d)

In Swift v. New York Transit Authority, the Appellate Division, First Department modified the trial court’s order to deny defendant’s motion for summary judgment to dismiss plaintiff’s claims of “permanent consequential and significant limitations in use of the knees and a 90/180-day injury.”

In order to proceed in court, plaintiff was required to present evidence that she suffered a “serious injury” under Insurance Law § 5102(d).

Plaintiff raised a triable issue of fact as to her knee injuries

by submitting medical reports, in admissible form, by her orthopedic surgeon, Dr. Randall Ehrlich, who confirmed during arthroscopic surgery the existence of tears in both knees, and measured continuing significant limitations in range of motion and positive clinical test results in the knees. Both Dr. Ehrlich and the surgeon who performed a knee replacement operation on the right knee concluded that the persisting limitations and knee symptoms were permanent in nature and that plaintiff would require further knee surgery in the future.

Plaintiff also “raised an issue of fact as to causation through her radiologist’s findings and her orthopedist’s opinion.” Specifically:

The radiologist acknowledged degeneration but also found acute and superimposed tears and microfractures shown in the MRI films. Dr. Ehrlich’s conclusion that plaintiff’s underlying arthritic conditions were “quiescent” before the accident, and the surgeons’ notations that the accident resulted in a “marked decrease in her ability to ambulate,” “marked limitations in her gait,” and an inability to return to work, sufficiently explain “how the subject accident reduced the functioning of the knee below the level of function that existed immediately prior to the accident”. Dr. Ehrlich’s report noting that he began treating plaintiff a month after the accident provides sufficient contemporaneous proof of injuries. Plaintiff’s testimony that she was looking for a doctor who would accept her Medicaid plan adequately explained the gap in treatment between her initial visit to the surgeon and the knee replacement surgery in November 2010. Plaintiff’s medical evidence undermines defendants’ other contentions as to gaps in treatment.

With respect to the “90/180” serious injury category, the court held: “Dr. Ehrlich’s report showing that plaintiff underwent arthroscopic knee surgery 2½ and 3½ months after the accident and the letter from plaintiff’s employer terminating her employment due to her inability to return to work for more than a year sufficiently raise a triable issue of fact as to the existence of a 90/180-day injury.”

However, the court held that plaintiff’s claim under the “permanent loss of use” serious injury category should have been dismissed, since “the record does not reflect a total loss of use of her knees or her cervical or lumbar spine.”

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