Case: Summary Judgment on Serious Injury Threshold Granted Against Plaintiff with Left Knee Surgery
Counsel: Alice Spitz
Result: Case Dismissed
MSD recently obtained summary judgment for failure to meet the no fault threshold (Ins Law §5102(d)), where the plaintiff allegedly injured his neck, back, right ankle, right wrist, both shoulders, and left knee (with surgery).
Judge Marguerite Grays in Supreme Court, Queens County found that the defense established prima facie that the plaintiff did not sustain a permanent consequential limitation of use or a significant limitation of use of a body function or system. The court specifically cited the film review submitted by the defense, which revealed that the findings in the MRI and X-rays films were degenerative and thus not caused by the accident. The court also specifically cited to the bio-mechanical engineer’s report which revealed that the forces involved in the accident could not have caused the alleged injuries. The court further found that the defense had established that the plaintiff did not meet the other categories of the statute.
In opposition, the plaintiff failed to establish an issue of fact. First, the plaintiff’s expert failed to discuss the degenerative findings in the films as established in the defense film review. Second, the plaintiff was not able to adequately explain his gap of treatment from 2018 through 2020. Third, the plaintiff failed to produce objective medical evidence that would support his claim of reduced work and other daily activities within the 90 out of 180 days after the accident. Case Dismissed!
Read the decision here.