New York Injury Lawyers Blog

In a recent New York Personal Injury case involving an party injured in a car accident, the Second Department of the New York State Appellate Division reversed a Nassau County Trial Court's determination that plaintiff had not raised a triable issue of fact with resepct to the serious injury threshold.

The Second Department found that the affidavit of plaintiff's treating chiropractor sufficiently raised a triable issue of fact as to whether she sustained a causally related serious injury to her cervical and lumbar spine. The treating chiropractor, Dr. Duk Soon Park, opined that based upon his contemporaneous and most recent examinations of the plaintiff, her cervical and lumbar injuries were permanent and causally related to the motor vehicle accident.

Website Resources:

Kwak v. Villamar, 71 AD3d 762 (2d Dept. 2010)

Any individual injured in a New York car accident seeking to recover for pain and suffering (non-economic damages) associated with the injury, must establish that he or she has sustained a "serious injury" as defined in Insurance Law Section 5102(d). The purpose of this legislation and the New York no-fault law is to keep "minor" injury cases out of the court system.

Under New York Insurance Law Section 5102(d), "serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Volumes of New York case law have discussed and dissected the definition above. If a plaintiff in a motor vehicle personal injury case fails to establish a "serious injury" (commonly referred to as failing to meet the "Serious Injury" Threshold), the defendant is entitled to Summary Judgment and the lawsuit is dismissed. Obviously, this a major concern for plaintiffs and plaintiffs' attorneys in the New York area. As such, here at the New York Injury Lawyers Blog, we are devoting a section on the site to the "Serious Injury Threshold" where will discuss new developments in this area of law.