New York Car Accident Lawyer Blog

Published on: March 10, 2013

In support of their motion, the opponents submitted the affirmed medical report

by Stephen Bilkis

This is an action for personal injury in which a Bronx man alleges that he sustained an injury as a result of a motor vehicle accident. A vehicle owned by a cab cormpany struck the man’s vehicle in the rear. The man claims that as a result of the accident he sustained spine injury, back pain, muscle spasms in lumbar spine and radiculopathy. The opponent however requests to dismiss the case agasint them on the ground that the man failed to meet the serious injury threshold.

In support of their motion, the opponents submitted the affirmed medical report of a radiologist who reviewed the MRI of the man’s thoracic spine. The opponent also submitted the affirmed medical report of a board certified neurologist and the man’s deposition testimony.

The Westchester radiologist found a scoliosis and diffuse degenerative changes of the thoracic intervertebral discs of the man and concluded that the small posterior disc protrusions present are of uncertain age and etiology and may be degenerative in nature.

Published on: March 6, 2013

Insurance claims that injuries are not serious

by Stephen Bilkis

On 6 July 2006, plaintiff was involved in an automobile accident. Consequently, plaintiff filed a personal injury action against The Bronx defendant to recover damages for the injuries he sustained as a result of the accident. In opposition, defendant moved for a motion for summary judgment dismissing plaintiff’s complaint on the ground that plaintiff has not sustained a serious injury within the meaning of Insurance Law.

The issue that was brought before the court for resolution was whether or not plaintiff has sustained a personal injury that is within the definition of serious injury under Insurance Law, and, as such, entitles him to recover damages from defendant.

As provided for under the no-fault law, in order to maintain an action for personal injury, a plaintiff must establish that a serious injury has been sustained. This is pursuant to the ruling of the court in the landmark case of Licari v. Elliot which was decided sometime in 1982. As a rule, the proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law; as held in the case of Alvarez v. Prospect Hospital, in 1986, and the case of Winegrad v. New York Univ. Medical Center, in 1985. Pursuant to the court’s ruling in the case of Lowe v. Bennett, which was decided by the 1st Department sometime in 1986, the burden rests on defendants to establish, by the submission of evidentiary proof in admissible form, that plaintiff has not suffered a serious injury. When a defendant’s motion is sufficient to raise the issue of whether a serious injury has been sustained, the burden shifts and it is then incumbent upon the plaintiff to produce prima facie evidence in admissible form to support the claim of serious injury. This was the Westchester court’s ruling in the cases of Licari v. Elliot and Lopez v. Senatore, in 1985. In support of a claim that plaintiff has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physician or the unsworn reports of plaintiff’s examining physician. Once the burden shifts, it is incumbent upon plaintiff, in opposition to defendant’s motion, to submit proof of serious injury in admissible form. Unsworn reports of plaintiff’s examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician’s personal examination and observations of plaintiff is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a plaintiff’s serious injury. As held in the cases of Gonzalez v. Vasquez in 2003 and Ayzen v. Melendez in 2002, unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a prima facie case of serious physical injury, the affirmation or affidavit must contain medical findings, which are based on the physician’s own examination, tests and observations and review of the record rather than manifesting only the plaintiff’s subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the CPLR to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice; as ruled in the cases of Pichardo v. Blum in 1999 and Feintuch v. Grella in 2003. In any event, the findings, which must be submitted in a competent statement under oath, or affirmation, when permitted, must demonstrate that plaintiff sustained at least one of the categories of serious injury as enumerated in Insurance Law. For example, in the case of Parker v. DeFontaine, it was held that a medical affidavit, which demonstrated that the plaintiff’s threshold motion limitations were objectively measured and observed by the physician, was sufficient to establish that plaintiff has suffered a serious injury within the meaning of that term as set forth in Article 51 of the Insurance Law. In other words, a physician’s observation as to actual limitations qualifies as objective evidence since it is based on the physician’s own examinations. Besides, in the absence of objective medical evidence in admissible form of serious injury, plaintiff’s self-serving affidavit is insufficient to raise a triable issue of fact.

Published on: March 3, 2013

Passengers are injured in Car Accident

by Stephen Bilkis

This action arises out of an automobile accident. It is alleged that at the time of the accident, the complainant man was the driver of a motor vehicle in which the complainant women were passengers; and that the complainants’ vehicle was rear-ended by the defendants’ vehicle.

Under the no-fault law, in order to maintain an action for personal injury, a complainant must establish that a serious injury has been sustained. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to judgment as a matter of law. In the present action, the burden rests on the defendants to establish, by the submission of evidentiary proof in admissible form, that the complainant man has not suffered a serious injury. When a defendant’s motion is sufficient to raise the issue of whether a serious injury has been sustained, the burden shifts and it is then incumbent upon the complainant to produce legitimate evidence in admissible form to support the claim of serious injury.

In support of a claim that the Westchester complainant has not sustained a serious injury, a defendant may rely either on the sworn statements of the defendant’s examining physician or the unsworn reports of the complainant’s examining physician. Once the burden shifts, it is incumbent upon the complainant, in opposition to defendant’s motion, to submit proof of serious injury in admissible form. Unsworn reports of the complainant’s examining doctor or chiropractor will not be sufficient to defeat a motion for summary judgment. Thus, a medical affirmation or affidavit which is based on a physician’s personal examination and observations of the complainant is an acceptable method to provide a doctor’s opinion regarding the existence and extent of a complainant’s serious injury. Unsworn MRI reports are not competent evidence unless both sides rely on those reports. However, in order to be sufficient to establish a legitimate case of serious physical injury the affirmation or affidavit must contain medical findings, which are based on the physician’s own examination, tests and observations and review of the record rather than manifesting only the complainant’s subjective complaints. It must be noted that a chiropractor is not one of the persons authorized by the Civil Practice Law and Rules to provide a statement by affirmation, and thus, for a chiropractor, only an affidavit containing the requisite findings will suffice.

Published on: February 24, 2013

Serious injury is questioned in a car accident case

by Stephen Bilkis

This is a case resolving the motion filed by the defendant for a summary judgment on the ground that plaintiff did not suffer any “serious injury” in the car accident which preceded the filing of this instant case. The defendant alleged that the injuries suffered by the plaintiff do not belong to the same category as that which was defined under the New York State Insurance Law. Plaintiff was not able to submit any opposition to the motion.

This case sprang from the incident which occurred on April 8, 2010 in Westchester wherein the parties were involved in a motor vehicle accident which led to the injuries sustained by the plaintiff. According to the plaintiff, he sustained the following damages: partial tear of the left shoulder and spinal injuries.

Under the law, it is required that the movant for a motion for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. He must be able to establish his claim by tendering evidence to prove that the court must decide in his favor.

Published on: February 20, 2013

Compensation depends on the severity of the injury

by Stephen Bilkis

As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Manhattan Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Staten Island employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

Published on: February 17, 2013

Accident Occurs on Southern State Parkway

by Stephen Bilkis

This is an action to recover damages for serious personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on Route 109 at or near the overpass of the Southern State Parkway, County of Suffolk, New York on March 9, 2005. Plaintiff claims in his complaint that he sustained serious permanent injuries as defined in Section 5102 (d) of the Insurance Law and economic loss greater than basic economic loss, as defined in Section 5102 (a) of the Insurance Law. A Lawyer said that, defendants now move for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a “serious injury” as defined in Insurance Law § 5102 (d). Plaintiff cross moves for partial summary judgment on liability grounds and for an inquest as to the assessment of damages. Plaintiff opposes defendants’ motion, and defendants have filed a reply.

A source said that, in support of this motion defendants submit, the pleadings; the plaintiff’s verified bill of particulars; plaintiff’s Hospital emergency department records, including x-ray reports of plaintiff’s cervical and thoracic spine; the affirmed report of defendant’s examining neurologist,; the affirmed report of defendant’s examining radiologist,; the affirmed report of defendant’s examining orthopedist,; plaintiff’s employment verification records dated March 1, 2006; and plaintiff’s deposition testimony.

A Spine Injury Lawyer said that, plaintiff claims in his verified bill of particulars that he sustained, among other things, disc bulges of the cervical spine injury and ventral cord abutment; a limited range of motion of the cervical spine injury; weakness in the upper extremities; and lumbar radicular dysfunction. Plaintiff also claims that he sustained scarring, anxiety and mental suffering. Additionally, plaintiff claims that he was totally disabled for about three weeks and that he remains partially disabled to date. Lastly, plaintiff claims that he sustained a serious injury in the categories of a permanent loss of use, a permanent consequential limitation, a significant limitation and a non-permanent injury.

Published on: February 13, 2013

Traffic Light in Question in Huntington

by Stephen Bilkis

This action is for personal injuries alleged to have occurred as a result of a motor vehicle accidentinvolving vehicles driven by plaintiff, , and defendant, , on February 19, 2002, at the intersection of Deepdale Drive and New York Avenue, Town of Huntington, New York. A Suffolk reporter said that, plaintiff served a summons and complaint on defendant. Thereafter, defendant served a third-party summons and complaint on third-party defendant. Within the third-party complaint, defendant alleged that the traffic light at the subject intersection was malfunctioning and inoperable at the time of the car accident.

A doctor said that, by order dated April 1, 2005, the third-party defendant was granted summary judgment dismissing the third-party complaint and all cross-claims against it. Within the aforementioned Order, the Court noted that during the discovery process, it was revealed that the town, not the County of Suffolk, “owned operated and controlled” the traffic signal at the subject intersection. A Lawyer said that, by Order dated March 23, 2007, this Court granted the summary judgment motions of second third-party defendant, and third-party defendant, on the grounds that there was no issue of material fact regarding the liability of those defendants. Defendant now moves for summary judgment, arguing that plaintiff has not met the serious injury threshold as set forth in Insurance Law § 5102(d). In support thereof, defendant has submitted, among other things, the deposition transcript of plaintiff, and reports from two doctors who conducted independent medical examinations of plaintiff.

A Lawyer said that, plaintiff served a verified bill of particulars, sworn to on December 11, 2003, which alleged that she suffered the following injuries as a result of the accident: sprain and contusion of left hip; pain in left hip; pain in left wrist; and injuries to the cervical spine, including spinal nerve root compression and bulging discs. Each injury, except for superficial ones, was alleged to be permanent and/or long lasting, and caused diminution of use and motion of the neck and back. Plaintiff appeared for a deposition, and was thereafter physically examined, on or about October 25, 2006, by an orthopedist, and a neurologist, both of whom were designated by defendant. After conducting objective tests on plaintiff, the doctors found, as indicated by their sworn reports, that plaintiff had no orthopedic impairment and no neurologic injury. The orthopedist found that plaintiff may perform the daily activities of living, without restriction, and the neurologist found no permanency or disability as a result of the subject accident. Based upon these findings, a source said that defendant argues that plaintiff has not satisfied the “serious injury” threshold, as set forth in Insurance Law § 5102(d). Defendant contends that plaintiff’s alleged soft tissue spinal injuries do not constitute a serious injury.

Published on: February 10, 2013

Taxi Involved in Car Accident

by Stephen Bilkis

This action was instituted by the plaintiff for alleged personal injuries sustained in a motor vehicle accident occurring on January 27, 2003 at approximately 12.21 a.m. on Barton Avenue at or near its intersection with Valley Road in Patchogue, Suffolk County on Long Island, New York. A source said that, the plaintiff alleges that the defendant taxi company, being driven by co-defendant, attempted to make a left turn from Barton Avenue, eastbound, onto Valley Road without signaling and came into contact with the plaintiff’s vehicle which was proceeding straight on Barton Avenue in a westerly direction. The plaintiff claims she hit the steering wheel and was bleeding from her left knee. This lawsuit thereafter ensued.

A Lawyer said that, the defendants now move for summary judgment pursuant to CPLR §3212 dismissing the plaintiff’s complaint on the grounds that the plaintiff has not sustained a “serious physical injury” as that term is defined in Insurance Law §5102(d). The defendants submit medical proof to substantiate their claim that the plaintiff failed to sustain a “serious injury” in the car accident. The plaintiff opposes the requested relief in an attorney’s affirmation arid submission of the plaintiff’s deposition but proffers no medical proof to substantiate the claim of a “serious physical injury”.The issue in this case is whether plaintiff sustained serious personal injury as defined under the Insurance Law.

The function of the Court on a motion for summary judgment is issue finding not issue determination. It is a most drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is `arguable; `issue finding, rather than issue determination is the key to the procedure.

Published on: February 6, 2013

Accident at Jewel Avenue

by Stephen Bilkis

This action arises from a motor vehicle accidentwhich occurred on September 19, 2008, at approximately 5:30 p.m., in the eastbound lanes of the Grand Central Parkway, Queens, New York, at or near its intersection with the Jewel Avenue Exit. The accident involved a 2005 Porche Boxster owned and operated by plaintiff and a 1986 Volvo Station Wagon owned by defendant and operated by defendant driver. Plaintiffs commenced this action by the filing and service of a Summons and Verified Complaint.

A source said that, it is plaintiff’s contention that the accident occurred when his vehicle, moving slowly in stop and go traffic on the Grand Central Parkway, was struck in the rear by defendants’ vehicle. Plaintiff claims that defendant driver admitted at his Examination Before Trial (“EBT”) that he did not see plaintiff’s vehicle until the moment of collision and offered no explanation for said collision other than his failure to pay attention to the road. Plaintiff claims that defendant driver was the negligent party in that he failed his duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that defendant driver cannot come up with a non-negligent explanation for striking plaintiff vehicle in the rear.

A Lawyer said that, in opposition to plaintiffs’ motion, defendants argue that, at his EBT, defendant driver testified that there were no brake lights illuminated on plaintiff’s vehicle just before the accident. Plaintiff submits that there is therefore an issue of fact as to the circumstances surrounding the accident and plaintiff’s motion should be denied. Defendants assert that a factual issue remains as to the extent that plaintiff’s comparative fault contributed to the happening of the subject accident by virtue of his failure to exercise ordinary prudence and to use such care to avoid the collision as an ordinarily prudent person would have under the circumstances.

Published on: February 2, 2013

Iron Works Company in Traffic Accident

by Stephen Bilkis

Two construction and repair crewmen from the water district were riding in the car of a co-worker on their way to work when their car was hit in the rear end by a truck driven by an employee of an iron works company.

Both the Bronx crewmen were injured. The other crewman, the one sitting in the back sustained spinal injury from the force of the impact of the collision. His spinal injury consisted of bulging discs in the cervical spine and in the lumbar spine. Because of these injuries, he suffered painful muscle spasms, migraine headaches and numbness in the right arm and shoulder. He was treated in the hospital and was confined to bed for six weeks following the accident. After the confinement, the crewman could not return to his regular job as repair crewman because he could not lift materials. He had difficulty bending down and he could not sit or stand for long periods of time.

Both the crewmen filed a suit in damages against the two drivers of the motor vehicles involved in the car accident. They both claimed compensation for damages under the Insurance Law for the spinal injuries and fractures they sustained as a result of the accident. The driver from the iron works company filed a motion for summary judgment alleging that the injuries sustained by the crewmen were not serious injuries and so they are not compensable injuries. The L.I. crewman was examined by independent physicians but the physicians examined the crewmen two years after the accident.