Wade Clark Mulcahy LLP

Recently, in Collado v. Chiarello, 208 N.Y.S.3d 921, the Supreme Court in Kings County decided on defendants’ motion for summary judgment in a case where plaintiff alleged personal injuries resulting from a motor vehicle collision caused by negligent operation of both defendants’ vehicles. Plaintiff, an injured passenger, alleged in her bill of particulars that she sustained post-concussion syndrome, headache syndrome, and injuries to her left shoulder, cervical, thoracic and lumbar spine. In moving for summary judgment, defendants argued that plaintiff did not suffer a “serious injury” as defined in N.Y. Insurance Law § 5102(d), a pre-requisite for plaintiffs seeking money damages in connection with a motor vehicle accident.

In support of their motion, defendants submitted physician reports summarizing orthopedic and neurological independent medical examinations of plaintiff, and a radiologist’s report of his review of plaintiff’s medical images. Importantly, the orthopedist’s report noted no significant findings from a straight leg raise test, but did not note what would be normal findings in such a test. Additionally, neither the neurologist’s nor the orthopedist’s reports addressed plaintiff’s claims of post-concussion headache syndrome, or her claimed left shoulder or thoracic spine injuries. Because of this, since defendants’ evidence “did not address all areas of claimed injuries clearly set forth in the plaintiff’s bill of particulars claimed injuries nor did they compare their findings to what is normal,” issues of fact remained as whether those unaddressed injuries amounted to a “serious injury.” As such, the court denied defendants’ motion since the proffered evidence failed to meet their prima facie burden of showing a lack of serious injury, and the court did not even need to consider the sufficiency of plaintiff’s opposition.

This case demonstrates the importance of being thorough in conducting plaintiff IMEs when defending motor vehicle cases. Successfully arguing that plaintiff did not suffer a “serious injury” as defined by N.Y. Insurance Law requires producing objective medical evidence rebutting each and every claimed injury.