Significant limitaiton prong of Ins Law 5102(d)June 18, 2018

Schaubroeck v Moriarty, 2018 NY Slip Op 04453 (4th Dept. 2018)

It is an obsession of mine.  When someone gets into an accident where the threshold applies, has made a complete recovery and can still recover under a non 90-180 basis.  I observed intermittently on here (this is a no fault and not a PI blog) the decoupling years ago of the permanent consequential and significant limitation prong of Ins Law 5102(d).  It is an issue that we do not see too much but it is interesting when we see it.

(1)  The report of defendant’s expert physician “does not establish that plaintiff’s condition is the result of a preexisting degenerative [condition] inasmuch as it fails to account for evidence that plaintiff had no complaints of pain prior to the accident’ ” (id. at 1842; see Thomas v Huh, 115 AD3d 1225, 1226 [4th Dept 2014]). Inasmuch as defendant failed to meet his initial burden on the motion with respect to causation, there is no need to consider the sufficiency of plaintiff’s opposing papers on that issue (see Sobieraj v Summers, 137 AD3d 1738, 1739 [4th Dept 2016]). (First observation on causation)

(2) “Contrary to defendant’s further contention, we conclude that the court properly denied that part of the motion with respect to the significant limitation of use category. Even assuming, arguendo, that defendant made a “prima facie showing that plaintiff’s alleged injuries did not satisfy [the] serious injury threshold” with respect to that category (Pommells v Perez, 4 NY3d 566, 574 [2005]), we conclude that plaintiff’s submissions in opposition to the motion raised an issue of fact. Those submissions included the affirmation of plaintiff’s treating physician, who, after reviewing plaintiff’s medical records and imaging studies, opined within a reasonable degree of medical certainty that plaintiff sustained a folded flap tear at the junction of the mid-body and posterior horn of the meniscus of his right knee, and lateral and medial meniscus tears of both knees that required surgery and were causally related to the accident. He further opined that, consistent with what he observed on the MRI and his observations during plaintiff’s surgery, the meniscus tears limited plaintiff’s ability to walk, sit for long periods, turn, twist, drive for long periods, climb stairs, and walk on uneven surfaces (see Lopez v Senatore, 65 NY2d 1017, 1020 [1985]; LoGrasso v City of Tonawanda, 87 AD3d 1390, 1391 [4th Dept 2011]).”

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