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An interesting 5102(d) case involving a knee surgeryFebruary 26, 2010

Gilmonio v Toussaint, 2010 NY Slip Op 50258(U)(App. Term 1st Dept. 2010).

An appellate court found that the a knee surgery was insufficient to defeat a threshold motion based upon a knee injury.  The court found that the plaintiff’s expert’s opinion was inappropriate “since [the doctor’s] conclusions were premised on an incomplete history of plaintiff’s medical treatment”.

Read the case – it is quite interesting.  Can you see the no-fault link?

2 Responses

  1. Check out Byong Yol Yi v Canela, 2010 NY Slip Op 01580 (App. Div., 1st, 2010):

    Plaintiff did not rely solely on MRIs showing bulging and herniated discs, as his doctor also performed straight-leg raising tests, which constitute “objective evidence of serious injury” (Brown v Achy, 9 AD3d 30, 32 [2004]).

    • JT says:

      They have said that before. I find it interesting how a completely subjective test can be deemed objective. I think, and do not quote me on this, but New Jersey Courts that have evaluated threshold issues (to the extent DiProspero has not eviscerated threshold in New Jersey) have considered SLR testing to be subjective.

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