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2nd Dept. Sides with the Medical Records (NY)

January 3, 2020

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<p style="text-align: justify;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Wettstein-v-Tucker.pdf">Wettstein v. Tucker</a></em>,<em><u> </u></em>the Appellate Division, Second Department addressed whether the two plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of a motor vehicle accident. The defendant moved for summary judgment to dismiss the complaint on the ground that neither plaintiff sustained a serious injury.</p>
<p style="text-align: justify;">Plaintiff Timothy alleged injuries to his spine and left shoulder, and plaintiff Michelle alleged injuries to the cervical region of her spine as a result of the subject motor vehicle accident.</p>
<p style="text-align: justify;">The Supreme Court, Nassau County granted the defendant’s motion for summary judgment, which was affirmed by the Appellate Division. The Appellate Division stated that the defendant submitted medical evidence that the plaintiffs’ injuries did not constitute serious injuries within the meaning of Insurance Law § 5102(d) (including under the 90/180 – day category) and that each plaintiff suffered from pre-existing conditions.</p>
<p style="text-align: justify;">This decision serves as a reminder that when making a summary judgment motion on the grounds that the plaintiff did not sustain a serious injury that it is imperative to submit medical records with your motion to prevent the plaintiff from raising a triable issue of fact. Additionally, the medical records should try to focus on the severity of the alleged injuries, and if the plaintiff suffers from any pre-existing conditions.</p>
<p style="text-align: justify;">Thanks to Corey Morgenstern for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>

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