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First Department Denies Defendant's "Threshold Motion" Due to Untimely IME?

January 25, 2011

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In <i>Quinones v. Ksieniewicz</i>, the First Department modified the decision of New York County Supreme Court, which had granted defendant's "threshold" summary judgment motion. Plaintiff' underwent an IME, which demonstrated no "permanent consequential limitation of use". Plaintiff then failed to raise a triable issue of fact in opposition to defendant's motion.

The First Department noted, however, that defendants failed to prove that plaintiff did not sustain a non-permanent injury for 90 of the 180 days immediately following the accident. The Court notes that the medical reports relied upon by defendants are dated approximately 2 years after the accident, as opposed to the six months immediately following the accident.

The Court implies, then, that if plaintiff's medical reports are dated later than 6 months after the date of loss, no defendant can meet their burden of demonstrating that plaintiff did not sustain a non-permanent injury. This is troubling, because the statute of limitations for negligence, the most common cause of action in auto accidents, is three years. A plaintiff could conceivably wait a year to bring suit, thereby rendering a defendant's threshold motion moot, at least as to a non-permanent injury.

Thanks to Brian Gibbons for his contribution to this post.

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