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New York No Fault Insurance - Part 1: Serious Injury Threshold

New York No Fault Insurance – Part 1: Serious Injury Threshold

For more information, please contact The Ahearne Law Firm, PLLC at (845) 986-2777 for an initial consultation and case evaluation.

This post is the first in a series highlighting New York’s no fault insurance law.

As mentioned in our New York No Fault Insurance blog post, New York is one of twelve states that have enacted no fault insurance law in order to protect individuals injured in motor vehicle accidents. No fault law removes, in part, the evaluation of each party’s fault in the causation of the accident and requires that insurance company pay up to $50,000 for legitimate economic losses related to the accident. Covered damages include, among other things, expenses for medical care and lost earnings. Article 51 of New York Insurance Law — also known as the No Fault Law or personal injury protection (PIP)—requires insurance coverage to pay for injuries for each person hurt in a vehicular accident regardless of who was actually at fault in the case.

Serious Injury Threshold

Article 51 of the Insurance Law provides that a plaintiff in a personal injury action arising out of negligence in the use or operation of a motor vehicle must establish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered “serious injury”.  Insurance Law § 5104(a), (b).  Serious injury is defined as personal injury which results in one of the following :

  • Death
  • Dismemberment
  • Significant disfigurement
  • Fracture
  • Loss of a fetus
  • Permanent loss of use of a body organ, member, function or system
  • Permanent consequential limitation of a body organ or member
  • Significant limitation of use of a body function or system
  • Medically determined injury or impairment of a non-permanent nature which 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 or impairment.

Insurance Law §5102(d).

Summary Judgment on Serious Injury Threshold

The Court of Appeals has stated that where alleged limitations are so minor, mild or slight as to be considered insignificant within the meaning of the Insurance Law §5102(d), summary judgment is warranted.  See, Licari v. Elliot, 57 N.Y.2d 203, 455 N.Y.S.2d 570 (1982). Where the defendant moves for summary judgment on the issue of serious injury, the defendant has initial burden of establishing a prima facie entitlement to summary judgment by submitting admissible evidence demonstrating that plaintiff did not sustain a serious injury arising out of the subject motor vehicle accident.  Kearse v. New York City Transit Authority, 16 A.D.3d 45, 789 N.Y.S.2d 281 (2nd Dept. 2005) (holding that defendant met his burden as the movant for summary judgment where he submitted admissible proof that the plaintiff suffered no disabilities causally related to the motor vehicle accident).  Accordingly, the burden will shift to plaintiff upon defendant’s prima facie showing, whereby plaintiff must submit evidence in opposition to defendant’s motion. Id.

It has long been established that an attorney’s affirmation is sufficient to support a motion for summary judgment, when it is accompanied by documentary evidence and exhibits establishing a movant’s right to relief. Lowe v. Bennett, 122 A.D.2d 728, 511 N.Y.S.2d 603 (1st Dept. 1986), aff’d 69 N.Y.2d 700, 512 N.Y.S.2d 364 (1986). However, proof submitted in support of summary judgment motion, or in opposition thereto, must be in admissible form. Zeigler v. Ramadhan, 5 A.D.3d 1080, 744 N.Y.S.2d 211 (4th Dept. 2004) (unsworn, unsigned affidavit from plaintiff’s physician was insufficient to raise a triable issue of fact).  Specifically, movant for summary judgment on the issue of serious injury threshold may not rely on unsworn medical records in support of his/her motion.  Dumont v. D.L. Peterson Trust, PHH, 307 A.D.2d 709, 762 N.Y.S.2d 743 (4th Dept. 2003).  Notably, however, where plaintiff’s counsel provides the unsworn medical records to the defendant, the defendant may use such records in support of his/her summary judgment motion.  Wiegand v. Schunck, 294 A.D.2d 839, 741 N.Y.S.2d 360 (4th Dept. 2002), citing, Lowe v. Bennett, 122 A.D.2d 728, 511 N.Y.S.2d 603 (1st Dept. 1986), aff’d 69 N.Y.2d 700, 512 N.Y.S.2d 364 (1986); see also, Patton v. Matusick, 16 A.D.3d 1072, 791 N.Y.S.2d 753 (4th Dept. 2005).

Courts have recognized that a defendant moving for summary judgment may submit unsworn medical reports and records of the plaintiff’s physicians to demonstrate a lack of serious injury.  However, when the defendant does so, he/she “opens the door” for the plaintiff to rely on the same unsworn or unaffirmed reports and records in opposition of the motion.  Kearse v. New York City Transit Authority, 16 A.D.3d 45, 47, 789 N.Y.S.2d 281, 283 (2nd Dept. 2005), citing Pech v. Yael Taxi Corp., 303 A.D.2d 733, 758 N.Y.S.2d 110 (2nd Dept. 2003).

#newyork #nofault #insurance #accident #injury

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For more information, please contact The Ahearne Law Firm, PLLC at (845) 986-2777 for an initial consultation and case evaluation.

 

 

 

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