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Threshold Motions: Not Just A Threat For Leverage (NY)

March 15, 2019

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Even though New York’s Insurance Law § 5102(d) was supposed to help weed out law suits for non-serious injuries in motor vehicle accidents, every defense attorney has handled a case arising out of a fender bender with minor injuries. Plaintiffs will often bet that defendants’ cost of litigation and motion practice weighed against the risk of failing on that motion will make a weak damages case more worthwhile. Indeed, many assume that any expert-versus-expert motion is doomed to failure. But the Bronx Supreme Court recently demonstrated that showed it is still possible to have these cases dismissed on summary judgment.

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/03/Bogle-v.-Paredes-1.pdf">Bogle-v.-Paredes</a></em>, the plaintiff claimed she suffered minor soft tissue injury to the cervical and lumbar spine as well as the wrists and right knee. She underwent three-to-six months of treatment and then stopped. Defendant, with supporting affidavits from an orthopedist, a radiologist, and a neurologist, cited plaintiff’s prior car accident and voluntary cessation of treatment and argued that he met his <u>prima facie</u> burden of demonstrating plaintiff’s injuries were not “serious” as a matter of law. Plaintiff’s opposition relied on a physician who did not evaluate plaintiff until four years after the accident which was insufficient to rebut the defense’s arguments. The First Department unanimously affirmed granting summary judgment to the defendant.

This decision highlights some of the issues with making such motions—it required a tenacious defense and the retention of three expert witnesses, which is costly. Clearly, each case will turn on its own merits and require a decision to be made as to the specific value of defending or settling each case. However, it is important to remember some plaintiffs will not be reasonable, and, in some cases, even when the defendant is otherwise dead to rights on liability, threshold motions are not simply idle threats for leverage during settlement negotiations.  They are a tool that can, in fact, win outright.

Thanks to Nicholas Schaefer for his contribution to this post. Please email <a href="mailto:VPinto@wcmlaw.com">Vito A. Pinto</a> with any questions.

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