By Kenneth E. Pitcoff and Andrea M. Alonso
August 30, 2021
The already congested courts are making efforts to significantly reduce the number of automobile personal injury cases in litigation. The First and Second Departments are strictly adhering to the legislative intent of § 5102(d) by routinely dismissing cases where the plaintiffs fail to establish the required evidence to demonstrate that a serious injury exists.
“Significant Disfigurement”
An injury becomes a significant disfigurement when a reasonable person viewing the person’s body in its altered state would regard the condition as objectionable or as the object of pity or scorn. N.Y. Pattern Jury Instr.--Civil 2:88B.
In Galindo v. Hodminson § 5102(d). 190 AD3d 483 (1st Dept 2021), the Court held that a plaintiff’s scar, located on the forehead, could not be considered a significant disfigurement because it was well healed, not discolored, or raised. Contrary to the plaintiff’s contention, the scar’s permanence and length of two-inches were not dispositive as to whether the scar was a significant disfigurement.
In Feutcher v. Composite Tr., 171 AD3d 647 (1st Dept 2019), the lower Court held that a bump on the plaintiff’s right temple was not a serious injury under the significant disfigurement category. The court reasoned that the bump was merely an “an area of ‘slightly increased prominence,’” and concluded that photographs of the plaintiff’s right temple depicted the same, a slight bump that was “cosmetically acceptable.”
The First Department reversed and found that the plaintiff raised a triable issue of fact as to whether their bump was a significant disfigurement. The plaintiff submitted photographs from the month after the accident that showed severe swelling and discoloration at the right temple and eye. Additional photographs taken two years after the accident showed swelling and a visible bump. The Court considered the length of time that the plaintiff endured the bump, along with the fact that the expert report said: “it would be tricky to repair because of the nerves in the area and the high likelihood of scarring.”
Similarly, in Garcia v. County of Suffolk, 149 AD3d 812 (2d Dept 2017), the lower Court held that head and shoulder scars sustained by the plaintiff did not constitute a serious injury because they were not readily visible. The Lower Court noted that the scars were located at the top of the plaintiff’s head, covered by hair, and required parting to become visible.
The Second Department reversed the lower court’s decision, finding that the plaintiff’s head laceration was a significant disfigurement because the scar, one inch above the forehead and requiring five stitches, was visible. The Court found that photographs submitted by the moving defendants that depicted the head and shoulder scars failed to establish, prima facie, that these scars did not constitute a significant disfigurement. Photographs are critical in any motion to dismiss for failure to establish a significant disfigurement.
“Fracture”
Under 5102(d) of the New York state Insurance Law, a Serious injury includes a personal injury that results in a fracture. The definition of serious injury only encompasses a fracture of bone and not soft tissue injuries. Tears and damage to cartilage do not constitute serious injury unless they were accompanied by the fracture of a bone structure.
In Seidel v. Rabassa, 170 AD3d 430 (1st Dept 2019), the Bronx Supreme Court ruled in favor of the defendant, finding that the plaintiff’s nasal injury did not constitute a serious injury under the fracture definition. The lower court emphasized that medical records contained no indication of trauma to the plaintiff’s face. While the plaintiff was assessed with hemorrhaging and a deviated septum, the CT scan of the plaintiff’s facial bones concluded that no acute facial fractures were found. The defendant also submitted reports of a neurologist, a plastic surgeon, and an otolaryngologist, all of which concluded that the plaintiff did not sustain a serious injury within the definition of Insurance Law §5102(d).
The First Department reversed the lower court’s decision holding that the plaintiff’s medical evidence raised a triable issue of fact as to whether she sustained a nasal fracture. The plastic surgeon, who performed a nasal endoscopy, diagnosed the plaintiff with a slight nasal fracture, which he observed during the procedure. The Court found that the reports and affidavit, based on the procedure, were sufficient to preclude summary judgment.
“Significant Limitation”
Where a plaintiff claims that they sustained a serious injury arising from “significant limitation of use of a body function or system,” the determination of whether the limitation is “significant” involves a determination of the degree or qualitative nature of an injury based on the normal function, purpose, and use of the body part.
In Diaz v. Vivar-Martinez, 192 AD3d 578 (1st Dept 2021), the lower court held that the defendant’s medical expert proof was sufficient to demonstrate that Ramon Diaz did not sustain a significant limitation. The defendants submitted expert reports demonstrating that the plaintiff’s cervical and lumbar spine ranges of motion were normal, with full muscle strength, symmetrical reflexes, and intact sensation. On appeal, the First Department reversed, finding that the plaintiffs raised a triable issue of fact by submitting an affirmed report of an orthopedic surgeon, who reviewed the plaintiff’s medical records and found a reduced range of motion in the right shoulder and cervical spine.
The First Department, in Tarjavaara v. Considine, 188 AD3d 509, 510 (1st Dept 2020), held that a plaintiff did not sustain a significant limitation with regard to his knee because he could not establish a causal connection between the accident and the injury. Despite submitting medical records affirming the injuries sustained to his left knee, including posttraumatic osteoarthritis, a large displaced meniscal tear, and a loss of 30 degrees of range of motion, resulting in a total left knee replacement, the plaintiff’s physician failed to establish that limitations were caused by the accident. A physician’s affidavit must causally connect the injury to the incident.
In De Los Santos v. Basilio, 176 AD3d 544 (1st Dept 2019), the First Department held that the plaintiff’s physician reports detailing treatment for persistent limitations in the spine and right shoulder for up to a year after the accident precluded summary judgment. The First Department reasoned that the physicians' reports documenting symptoms spasms and providing quantified range of motion restrictions as compared to normal are sufficient to demonstrate continuing limitations, notwithstanding that the doctors did not specify the instrument used to measure range of motion.
Similarly, in Perez-Vargas v. Aarron, 187 AD3d 485 (1st Dept 2020), the First Department denied summary judgment after finding that the plaintiff sustained significant limitations of use in his spine, shoulder, and knee. Again, the plaintiff raised an issue of fact by submitting his treating physicians’ reports finding limitations in range of motion that were causally related to the accident.
The plaintiff’s orthopedic surgeon found decreased ranges of motion but opined that the results were subjective and “dependent on claimant effort,” while noting that there were no objective findings in the examination. Despite the testimony from the orthopedic surgeon and no-fault examiner, who also found normal ranges of motion, the First Department found the treating physicians’ reports were enough to preclude summary judgment on the issue of significant limitation.
“Gap In Treatment”
The Court of Appeals has held that dismissal is warranted when gaps in medical treatment interrupt the chain of causation between the accident and the claimed injury. Pommells v. Perez, 4 N.Y.3d 566, 571, (2005).
In Bianchi v. Mason, 179 AD3d 567 (1st Dept 2020), the defendants established a prima facie showing that the plaintiff did not suffer a serious injury to her cervical spine or left hip. The defendants submitted medical opinions showing that the plaintiff maintained normal ranges of motion in both the hip and spine. The defendants identified a gap in the plaintiff’s treatment, ultimately shifting the burden to the plaintiff to offer a reasonable explanation for the cessation of her treatment. The court held that the plaintiff did not explain her 16-month gap in treatment starting more than a year after the accident and dismissed her case.
The plaintiff in Gomez v Davis, 146 AD3d 456 (1st Dept 2017), adequately explained her gaps in treatment when she testified that her insurance company stopped her coverage. Uncertified medical records sufficiently supported testimony concerning the cessation of treatment.
“Previous Accidents and Preexisting Conditions”
Where defendants present evidence of preexisting degenerative conditions causing the same injuries alleged by the plaintiff, the plaintiff bears the burden of showing that the injuries were not caused by the preexisting condition. A serious injury is not proximately caused by an automobile accident where the injured plaintiff had been involved in a prior accident that was proven to cause the injuries claimed as a result of the subject accident.
The plaintiff in Diaz v. Vivar-Martinez, 192 AD3d 578 (1st Dept 2021), claimed that she sustained a serious injury to her lumbar spine. The defendants highlighted the fact that the plaintiff had a preexisting lumbar spine condition and had undergone an MRI shortly before her accident. The plaintiff’s expert did not address her preexisting lumbar spine condition in his report. The First Department granted summary judgment in favor of the defendant. Preexisting conditions must be addressed by the plaintiff’s doctors or dismissal is warranted.
In Antepara v. Garcia, 194 AD3d 513 (1st Dept 2021), the defendants succeeded in their motion to dismiss by introducing evidence of preexisting conditions and previous accidents that broke the chain of causation. The plaintiff alleged that he sustained a serious injury to his spine, right hip, right elbow, and left knee after being struck by the plaintiff’s motor vehicle while riding his bicycle. The defendants met their prima facie burden by submitting a radiologist report which found that the plaintiff’s post-accident MRIs showed preexisting degenerative changes unrelated to the collision. The plaintiff’s expert also failed to address prior and subsequent motor vehicle accidents in which the plaintiff claimed to have suffered spinal injuries.
“90/180 Days”
Insurance Law § 5102(d) also defines serious injury as an injury that prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury.
In Morales v. Cabral, 177 AD3d 556, 558 (1st Dept 2019), the First Department denied the plaintiff’s 90/180 Day claim after the defendant established that the plaintiff returned to work immediately after the accident. The plaintiff alleged that she sustained serious injuries to her neck, back, and left shoulder that relegated her to physical therapy and medical treatment, subsequently incapacitating her from employment for four months. However, the defendants established prima facie that there was no 90/180-day injury by submitting the plaintiff’s own testimony that she returned to work one day after the accident despite her documentation of physical therapy and medical treatments.
In both Gordan v. Reyes Hernandez, 181 AD3d 424 (1st Dept 2020) and Streety v. Toure, 173 AD3d 462, 463 (1st Dept 2019), the First Department denied claims of serious injury under the 90/180-day category after the defendants proved that the plaintiffs merely missed days of work.
The defendants in Gordan defeated the 90/180-day claim, alleging injuries to the cervical spine, lumbar spine, left shoulder, and left knee by submitting the plaintiff’s deposition testimony. In the deposition testimony, the plaintiff declared that he only missed “days” of work after the accident. In Streety, the defendants succeeded in dismissing the 90/180-day claim alleging injuries to the cervical and lumbar spines, left knee, and left shoulder by showing, through deposition testimony, that the plaintiff was confined to his home for approximately three weeks, falling short of the required 90 out of the first 180 days immediately following the occurrence of the injury.
In Marcelo v. Fabius, 195 AD3d 472 (1st Dept 2021), the First Department dismissed a 90/180-day claim of serious injury. The court held that the plaintiff’s testimony, explaining that she was not confined to home or bed during any period of the time following the accident, precluded her from making a 90/180-day claim.
Similarly, in Deneen v. Bucknor, 178 AD3d 461, 462 (1st Dept 2019), the First Department held that the plaintiff did not sustain a serious injury under the 90/180-day category when he returned to work two weeks after the motor vehicle accident. Here, the plaintiff claimed that he sustained injury to his cervical and lumbar spine. Ultimately, the court found that the plaintiff’s statements that he was restricted in performing daily activities and hobbies were unsupported by objective medical evidence.
Recent cases are confirming a new trend in no-fault law involving serious injury claims under the significant disfigurement, fracture, significant limitation, gap in treatment, preexisting conditions/previous accidents, and 90/180-day categories. Courts are scrutinizing claims and are inclined to dispose of them when the plaintiffs fail to provide objective evidence in admissible form.
Kenneth E. Pitcoff and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley. Raymond A. Iglesias, a paralegal, assisted in the preparation of the article.
Reprinted with permission from the August 30, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.