Serious injury, causation and the ability to recoverNovember 28, 2016
Hojun Hwang v Doe, 2016 NY Slip Op 07610 (1st Dept. 2016)
(1) “Defendant made a prima facie showing that plaintiff did not sustain a serious injury to his right knee, by submitting the report of their orthopedic surgeon who found full range of motion, and opined, upon review of intraoperative photographs, that plaintiff’s knee surgery was not causally related to the accident (see Hernandez v Cespedes, 141 AD3d 483 [1st Dept 2016]; Acosta v Zulu Servs., Inc., 129 AD3d 640 [1st Dept 2015]).
(2) “Plaintiff’s failure to raise an issue of fact as to whether his right knee condition was causally related to the accident means that he cannot recover for any right knee injury, regardless of whether he meets the serious injury threshold with respect to his cervical and lumbar spine claims (see Rubin v SMS Taxi Corp., 71 AD3d 548, 549 [1st Dept 2010]).”
This is an example of the causation defense at its worst. Plaintiff in his BP/Supp BP appears to have pleaded neck, back and right knee with surgery. The value of the case would rest with the right knee injury. The court in the SJ motion dismissed threshold on the right knee injury based upon lack of causation. The neck and back remain. The net effect because the Court found lack of causation (as opposed to lack of serious injury) is that the knee injury cannot be considered at all if the neck and back surpass threshold. The decision makes sense.
The causation piece fits within the more contemporary manner of trying an extremity of surgery where hevay reliance is placed on the operative photos and mininal reliance is palced on the MRI filns.