New York, N.Y. (March 30, 2023) – New York Partners Ellen H. Greiper, Kristen Carroll, and Nolan P. Comfort recently secured dismissal in a rear-end accident case based on the no-fault threshold, where summary judgment on liability was already granted to the plaintiff. This case is an example of how thorough preparation can lead to a successful result despite an unfavorable liability position.
The Case
In this matter, the court held that the defendants established their prima facie entitlement to dismissal as a matter of law, as the plaintiff testified that he had ceased treatment in relation to the accident in February of 2021, and was only out of work for six weeks. Our independent medical examination (IME) doctor found normal range of motion in the plaintiff's lumbar, cervical, and thoracic spine, as well as his left shoulder, with negative orthopedic testing results. He also reviewed the plaintiff's lumbar spine MRI films, which showed solely degenerative findings.
Much of the evidence submitted by the plaintiff in opposition was inadmissible, and the court agreed that the plaintiff failed to provide any admissible medical evidence concerning his condition contemporaneous with the accident sufficient to raise an issue of fact as to causation. While the plaintiff's doctor found range of motion limitations at a recent examination, the court held that his examination of the plaintiff two years and three months after the accident was insufficient to reliably connect his current symptoms to the accident.
The court, in its decision, noted that neither the plaintiff nor his physician provided any explanation for his cessation of treatment, which rendered the physician's opinion as to the permanency, significance, and causation of the claimed injuries speculative.
Takeaway
This case demonstrates that despite an unfavorable liability position where summary judgment was awarded on liability against the insured, dismissal of the complaint can still be achieved on the grounds that the plaintiff did not sustain a "serious injury" under New York Insurance Law § 5102(d). In this case, through deposition testimony of the plaintiff and an in-depth expert report, we sufficiently demonstrated that the plaintiff did not sustain cognizable injuries under the threshold law. Multiple arguments were advanced, including lack of causation, cessation of treatment, reliance on inadmissible evidence, and lack of contemporaneous treatment, all of which were recognized by the court in its decision.
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