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First, another plaintiff fails to adequately address a claim of lack of causation. Secondly, a serious injury is not required in order to sustain a claim for economic loss after the three year period found in 5102(a)(2)February 16, 2010

Hartman-jweid v Overbaugh, 2010 NY Slip Op 01197 (4th Dept. 2010)

1. Lack of Causation:

“Defendant’s expert concluded, based on his examination of plaintiff and his review of her medical records, that the only objective medical findings with respect to any alleged injury related to a preexisting degenerative condition of the spine. “[W]ith persuasive evidence that plaintiff’s alleged pain and injuries were related to a preexisting condition, plaintiff had the burden to come forward with evidence addressing defendant’s claimed lack of causation” and, here, plaintiff failed to meet that burden (Carrasco v Mendez, 4 NY3d 566, 580; see Lux v Jakson, 52 AD3d 1253). Although plaintiff submitted the affidavits of a chiropractor and her treating physician in opposition to the motion,neither affidavit addressed the conclusion of defendant’s expert that the changes in plaintiff’s spine were degenerative in nature (see Marsh v City of New York, 61 AD3d 552; Valentin v Pomilla, 59 AD3d 184, 186; Lux, 52 AD3d 1253).”

2. A Plaintiff may collect economic loss for the three year time period following the motor vehicle accident

“Finally, we reject the contention of plaintiff that the court erred in granting that part of defendant’s motion concerning her claim for loss of earnings that continue beyond the three-year statutory period (see generally Insurance Law § 5102 [a] [2]). Although a plaintiff need not sustain a serious injury to support such a claim (see Colvin v Slawoniewski, 15 AD3d 900; Tortorello v Landi, 136 AD2d 545), defendant met his initial burden by establishing that plaintiff did not sustain any injury that was causally related to the accident and that any limitation on plaintiff’s activities was self-imposed, and plaintiff failed to raise a triable issue of fact with respect to that claim.”

I found the second part interesting.  I suppose if I hurt my back, decide not to “treat”, avoid a no-fault IME, never go back to work and hire someone to substantiate why I did not go back to work, I can collect economic damages for the rest of my life.

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