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For a New York auto accident victim to recover damages for pain and suffering, he or she must have sustained a serious injury as defined by New York Insurance Law. New York personal injury attorneys often seek to have the issue of serious injury resolved through summary judgment. A plaintiff seeking summary judgment must make a prima facie showing that there was a serious injury. To successfully oppose the plaintiff’s motion, the defendant must raise a triable issue of fact as to the serious injury.

A New York court recently granted a plaintiff’s motion for summary judgment despite the defendants’ experts finding no objective disability resulting from the accident. The plaintiff filed suit against the owner and operator of the vehicle that rear-ended the vehicle in which she was riding. The plaintiff asserted that she had a herniated disc, aggravation or exacerbation of pre-existing conditions of her cervical spine and lumbar spine, sprains and strains of the cervical and lumbar spine, decreased range of motion of the cervical spine and lumbar spine, and disc space narrowing with disc herniation. She received epidural and trigger point injections.

The plaintiff moved for summary judgment on the ground she had sustained a serious injury in the 90/180 category. She submitted an affidavit stating she was a traffic enforcement agent at the time of the accident and was out of work for a year due to her injuries. She also asserted that she wore a back brace for six months. She stated she was unable to drive for six months, due to the pain and limitations of movement in her neck and back. She further asserted she was unable to clean her house, lift heavy things, or carry the laundry. She also stated that her injuries from prior accidents had been resolved at the time of the accident.

The plaintiff also submitted the affirmation and reports from her doctor. The doctor noted the plaintiff had ongoing pain, a reduced range of motion, and decreased mobility and endurance, all limiting her ability to return to work and perform her daily activities. She opined to a reasonable degree of medical certainly that the plaintiff was totally disabled from her work and her activities of daily living from March 2014 until March 2015, due to the injuries she sustained in the accident. The doctor’s notes indicated the plaintiff was cleared to return to work in March 2015.

The court found the plaintiff had met the prima facie burden of showing she sustained a serious injury.

The defendants submitted a copy of the plaintiff’s deposition transcript and affirmed reports of independent medical examinations. One of the doctors found long-standing degenerative changes, and another found there was a contributing prior back injury resulting from a prior accident. Based on their independent medical examinations, those doctors opined that the plaintiff’s spinal injuries had resolved, and there was no objective orthopedic or neurologic disability. These experts did not address the plaintiff’s condition during the 90/180 timeframe. Furthermore, they did not address the plaintiff’s claims that the accident exacerbated her preexisting injuries and degenerative conditions.

The court therefore found the defendants failed to raise a triable issue of fact as to the plaintiff’s claim of serious injury. The court granted the plaintiff’s motion for summary judgment.

As this case shows, if a plaintiff claims a serious injury under the 90/180 category, the relevant timeframe is the 180 days after the accident. The plaintiff must show she sustained an injury or impairment that prevented her from performing substantially all of the material acts constituting her usual and customary daily activities for at least 90 days during the 180 days immediately following the accident. If the plaintiff makes this showing in a motion for summary judgment, the defendant must counter with evidence that raises a triable issue of fact as to whether such an injury occurred. If the defendant’s evidence is based on the plaintiff’s current condition rather than the 180-day period after the accident, the plaintiff will likely succeed in obtaining summary judgment.

If you have been seriously injured in an accident, an experienced New York auto accident attorney can help you seek the compensation you deserve. Call the Law Offices of Marc S. Albert at 1.855.252.3788 to discuss your case.

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