DEFENSE LOSES NO-FAULT SERIOUS INJURY THRESHOLD SUMMARY JUDGMENT MOTION WHERE ITS EXAMINING DOCTOR DIDN'T MEASURE ACCIDENT VICTIM'S

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Bobbie O. Sparks v. Jon S. Detterline

Date: July 19, 2011.

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Brooklyn accident injury lawyer)

Comment: Tired am I of writing about car accident cases where the I injured accident victims are forced to defend against summary judgment motions trying to throw out their case, based on the plaintiff's alleged failure to breach New York State's No-Fault "serious injury" threshold. There is way, way too much litigation on this issue. Way too many reported cases. And way too many lawyers and judges, even, that don't "get it."

And if you're a defense law firm trying to force an accident victim out of court, if you decide to make this motion - which, unfortunately seems to have become almost routine or automatic - at least platy the game right so you maybe deserve to win your case.

The appellate case printed below and which is the subject of this blog and my today's rant is a classic example of a defendant making a summary judgment motion based on the No-Fault serious injury threshold and not knowing what the heck s/he (the defense lawyer) was doing. Maybe this rather routine assignment was passed off to a lowly inexperienced lawyer associate. Maybe no ono cared if they wasted the Court's time and th time of the plaintiff's attorney. Whatever the reason, defense did not bring its "A" game and wasted time and money and got its butt kicked on this appeal.

Worst yet, the defense won below, so there sits a lower court Supreme Court judge who also got it wrong.

And so it goes.

ANOTHER INJURED CAR ACCIDENT VICTIM DENIED HER DAY IN COURT DUE TO LEGAL TECHNICALITY (Posted by Queens injury attorney Gary E. Rosenberg on September 3, 2010)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Wood, J.), dated September 2, 2010, which, in effect, granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 559, 427 N.Y.S.2d 595, 404 N.E.2d 718). The conclusion set forth in the affirmed report of the defendant's examining physician, Dr. Jeffrey S. Oppenheim, that the plaintiffs' complaints were subjective in nature and that she had "no objective identifiable neurological deficit, and therefore, no objective neurological disability," was conclusory, speculative, and insufficient to establish the defendants' prima facie entitlement to judgment as a matter of law, as Dr. Oppenheim conducted no objective range-of-motion testing (see Borras v. Lewis, 79 A.D.3d 1084, 913 N.Y.S.2d 577; Powell v. Prego, 59 A.D.3d 417, 418-419, 872 N.Y.S.2d 207; cf. Conder v. City of New York, 62 A.D.3d 743, 879 N.Y.S.2d 169. Further, Dr. Oppenheim's assertion that the plaintiff, during his examination of her, was "essentially unable" to move her neck in any direction "in any significant way that would allow for a definition of range of motion testing" suggests that any limitation was not insignificant (cf. Kharzis v. PV Holding Corp., 78 A.D.3d 1122, 912 N.Y.S.2d 114; Kjono v. Fenning, 69 A.D.3d 581, 893 N.Y.S.2d 157). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.