On August 21, 2013, the Supreme Court Appellate Division, Second Department reversed an Order of the Supreme Court, which had granted summary judgment to the defendant in a Queens car accident case.
The original granting of summary judgment for the defendant, and its subsequent denial on appeal, centered around the failure of the plaintiff’s lawyer to provide a timely physician’s affirmation from the plaintiff’s neurologist detailing the extent of the plaintiff’s injuries. On appeal, the Second Department found that this delay was the fault of the treating physician, rather than the plaintiff’s attorney. Because there was no willful neglect on the part of the attorney, Queens Supreme Court could have utilized its discretion to excuse this delay.
Also critical to the Court’s ruling was the meaning of a “serious injury” as defined by Insurance Law section 5102(d). Although the plaintiff had not submitted the neurologist’s affirmation, she had submitted an affidavit from her chiropractor. In this affidavit, the chiropractor found limitations in the range of motion of the plaintiff’s spine of more than 50%. After another more recent examination, this range of motion was found to have gotten worse. Under section 5102(d), a serious injury may be “…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 than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” Based on the findings of the chiropractor and the subsequent examination, the Court ruled that the plaintiff had presented “a potentially meritorious defense to the defendant’s motion for summary judgment.” As such, the Appellate Court vacated the Order and held that the defendant failed to establish entitlement for dismissal as a matter of law, .