Graves v. L&N Car Service

87 A.D.3d 878, 931 N.Y.2d 550

Opinions

This is an action seeking damages for “serious injury” within the meaning of Insurance Law § 5102 (d) allegedly resulting from a motor vehicle accident. In support of their motion for summary judgment, defendants submitted affirmations of a radiologist, Dr. Jessica Berkowitz, attesting that she examined MRIs of plaintiffs cervical spine, lumbar spine and right shoulder, and found no evidence of a causal relationship between plaintiffs injuries and the subject accident. Rather, for reasons Dr. Berkowitz explained with particularity in her affirmations, the injuries appeared to result from chronic and degenerative conditions and were not the type of injuries that are caused by trauma. The radiology reports submitted by plaintiff, by contrast, said nothing about the etiology of the injuries, and the report of plaintiffs chiropractor contained only a conclusory assertion that there was a causal connection between the injuries and the accident. On this record, defendants established a prima facie case for dismissal of the complaint insofar as it was based on an alleged permanent, consequential and significant serious injury, and plaintiff failed to meet her burden to come forward with competent medical evidence specifically refuting the claimed lack of causal connection to the accident (see Pommells v Perez, 4 NY3d 566, 579-580 [2005]; Charley v Goss, 54 AD3d 569, 571-572 [2008], affd 12 NY3d 750 [2009]). Moreover, plaintiff’s admissions in her bill of particulars and deposition testimony that she missed only three weeks of work as a result of the accident established as a matter of law that she did not suffer a serious injury within the meaning of the 90/180-day prong of Insurance Law § 5102 (d). Accordingly, defendants’ summary judgment motion should have been granted. Concur— Andrias, J.E, Saxe, Friedman and Richter, JJ.