New York Injury Lawyers Blog

A New York Appellate Court recently reversed a trial level decision granting summary judgment in favor of the defendant in the 2009 case of Esther Jacobs v. Hector D Rolen. Plaintiff, who was involved in a car accident in New York, currently experiences limited range of motion in her lumbar spine, but full range of motion everywhere else. Defendant's expert, a radiologist, argued that the reduced range of motion experienced by the plaintiff was due to degenerative disc disease rather than causally related to the accident. Defendant also submitted an expert affidavit from an orthopedic surgeon who opined that although the plaintiff still experenced a reduction in range of motion 2 1/2 years after her automobile accident, these injuries were not "serious" as a matter of law. According to Insurance Law Section 5102(d), "'Serious injury" is defined as a personal injury which results in, among other things, "permanent consequential limitation of use of a body organ or member" and/or "significant limitation of use of a body function or system." In the lower court, a Bronx County Supreme Court Justice ruled that the defendant had met its burden of proof for summary judgment and granted the motion.

On appeal, the First Department held that plaintiff successfully raised issues of fact as to whether the injuries sustained constituted a "serious injury." Plaintiff's expert, her treating physician, contended that plaintff's injuries were, in fact, causally related to the accident. He supported his position by relying on "objective, quantitative tests" that showed significant range of motion limitations directly after the accident, as well as three years later. Plaintiff was also able to sufficiently explain a gap in treatment by stating that she continued her physical therapy until her no-fault benefits ceased, at which point she could no longer afford to pay for her treatment.

This is a familiar fact pattern for attorneys that handle car accident cases in New York. This is commonly referred to as a "threshold case", where it is questionable whether the injuries sustained will constitute a "serious injury" under the Insurance Law. Appellate decisions in this area of law are very fact specific and as illustrated here, it is important for plaintiffs to submit an affidavit from a physician whose opinions are based on "objective, quantitative tests" such as a Electromyography (EMG).

Jacobs v. Rolen, 76 AD3d 905 (NY 2010)

In a recent decision, the New York State Appellate Division, Second Department held that in a motor vehicle accident, disc bulges and decreased range of motion constitute a "serious injury" under Insurance Law Section 5102. The affirmation of plaintiff's treating physician submitted to the court was based on a recent exam, as well as examinations closer in time to the accident.

The physician's affirmation made reference to reports of MRI scans of the cervical and lumbar spines indicative of four bulging discs. Plaintiff's physician concluded that the bulges and range-of-motion limitations observed during his examinations were permanent and causally related to the accident. The Second Department held that "[t]his submission alone was sufficient to raise a triable issue of fact as to whether he sustained a serious injury to the cervical and/or lumbar regions of his spine under the permanent consequential limitation of use category under the "serious injury" statute.

Furthermore, the Second Department held that plaintiff adequately explained a gap in treatment by stating in his affidavit that he could not afford any additional medical treatment after no-fault benefits were terminated.

Website Resource:

Tai Ho Kang v. Young Sun Cho, 2010 NY Slip Op 05757 [2nd Dept. 2010].

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.

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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.