Medical Evidence Key To Establishing “Serious Injury” Defense Under New York Insurance Law §5102(d) (NY)Article 51 of the New York Insurance Law generally requires that a plaintiff in a personal injury lawsuit arising from negligent use or operation of a motor vehicle must show that he or she suffered a “serious injury.” New York Insurance Law § 5102(d) lays out what types of injuries will be deemed sufficiently “serious” for the plaintiff to pursue money damages. The Appellate Division, Second Department recently addressed these issues in a pair of cases. In Leon v. Eagle Auto Mall Corp., the plaintiff sought to recover damages for personal injuries allegedly sustained in a car accident. The defendants moved for summary judgment on the grounds that the plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d) and the lower court granted the motion. The Second Department affirmed, holding that the defendants submitted competent medical evidence establishing that the alleged neck, back and shoulder injuries did not constitute “serious injuries” under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). The Court noted that the defendants showed that following plaintiff’s accident, he was found to have no broken bones and MRI scans showed no evidence of abnormalities or disc herniations in plaintiff’s spine. Finally, plaintiff’s IME revealed no causally related neurological injuries as a result of plaintiff’s accident. In Malik v. Turcios, the plaintiff also sought to recover damages for personal injuries allegedly sustained in a car accident and the trial court granted defendants’ summary judgment motion on the grounds that the plaintiff did not sustain a serious injury under § 5102(d). The Second Department also affirmed that decision, holding that while plaintiff had submitted a physician’s Affidavit stating that her injuries were permanent and a result of the subject accident, the defendants’ medical evidence established that the alleged shoulder injury did not constitute a “serious injury” under either the permanent consequential limitation of use or significant limitation of use categories of § 5102(d). The Court found that the evidence, including prior MRIs and deposition testimony, established that the alleged neck and back injuries were preexisting and not caused by the subject accident. Finally, the Court held that the other injuries claimed by plaintiff were mild and did raise to the level of “serious injury” under § 5102(d). These decisions highlight the importance of carefully reviewing a plaintiff’s medical records and history to determine the severity of the alleged injuries and whether any of the injuries are pre-existing. Defendants should consider pursuing a “serious injury” defense under § 5102(d) if the alleged injuries are pre-existing and the records do not show objective evidence of a permanent injury or significant limitation of use. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.