This involves a case where the court ruled that plaintiff did not sustain a “serious injury” contemplated under New York State Insurance Law § 5102(d).
A car accident occurred on January 30, 2008, at approximately 8:15 a.m., at or near the intersection of Hempstead Turnpike and Locustwood Boulevard, Elmont, Nassau County, Long Island. The accident involved a 2005 Suzuki Verona four-door sedan owned and operated by defendant. On that date, at that time, it was raining out and plaintiff, who is four feet ten inches tall, was holding an umbrella standing on the southwest corner of the aforementioned intersection waiting for the pedestrian light to change from red to green so she could cross Hempstead Turnpike. Plaintiff claimed that she looked before crossing and did not see any vehicles on Locustwood Boulevard making a turn onto Hempstead Turnpike. Plaintiff further claimed that, as she was crossing Hempstead Turnpike, she was struck in the rear, specifically her lower back, by the front of defendant’s vehicle. As a result of the impact, plaintiff was thrown to the side. Plaintiff commenced an action by the filing a Verified Complaint for spinal injuries sustained.
Defendant argued that plaintiff already crossed in front of her, but then due to wind catching her umbrella, plaintiff walked backwards into the defendants vehicle. Plaintiff denied that the wind turned her umbrella inside out. Clearly, the parties give conflicting testimony with regard to how the accident occurred and plaintiff is not entitled to summary judgment.
The court ruled that there is an issue of fact with respect to whether the wind, turning plaintiff’s umbrella inside out, caused plaintiff to walk backwards into the defendant’s vehicle.
Defendant submitted that the clinical findings and diagnosis reported by the physician who examined plaintiff in the Franklin Hospital Emergency Room after the subject accident establish that plaintiff did not suffer any “serious injury” in the accident. . Upon examination, it was noted that plaintiff’s neck was supple and all extremities were normal. Plaintiff also had a normal musculoskeletal and neurological examination. The attending physician in the Emergency Room sent plaintiff for x-rays of her cervical spine, lumbosacral spine and pelvis, which were negative for fracture and dislocation.
Based upon this evidence, the Court found that the defendant has established a prima facie case that plaintiff did not sustain serious injuries within the meaning of New York State Insurance Law § 5102(d).
To oppose defendant’s motion, plaintiff submitted unsworn medical reports of treating physician. However, the court ruled that said reports do not constitute competent admissible evidence in opposition to defendant’s motion for summary judgment as unsworn reports of the plaintiff’s examining doctors are not sufficient to defeat a motion for summary judgment. Further, the defendant argued that in the affirmation of the physician, the physician did not provide explanation for plaintiff’s gap in treatment from March 3, 2009 to September 13, 2011 and that said failure to explain the gap in treatment is fatal to the opposition.
The Court held that where there is ample proof of a plaintiff’s injury, certain factors may nonetheless override a plaintiff’s objective medical proof of limitations and permit dismissal of a plaintiff’s complaint. Specifically, additional contributing factors such as a gap in treatment, an intervening medical problem or a pre-existing condition would interrupt the chain of causation between the accident and the claimed injury.
According to the court, plaintiff did not provide the Court with evidence of any physical therapy she may or may not have been taking part in since the date of the accident. Also, there was no statement from any doctors that plaintiff had reached her maximum possible medical improvement and that further treatment was unnecessary. Consequently, as plaintiff had an approximately two year gap in treatment and failed to adequately explain said cessation of treatment, the Court finds that these factors override plaintiff’s objective medical proof of limitations and permits dismissal of plaintiff’s Verified Complaint.
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