Significant limitation v. permanent consequential

Rosenblum v Irby, 2021 NY Slip Op 02854 (3d Dept. 2021)

(1) “As far as the significant limitation of use category is concerned, permanency of limitation is not required (see Lavrinovich v Conrad, 180 AD3d 1265, 1269 [2020[*2]]; Gates v Longden, 120 AD3d 980, 981 [2014]).”

(2) “Moreover, evidence that a plaintiff’s range of motion has significantly improved or returned to normal in the affected body organ, member, function or system will preclude a finding of a permanent consequential limitation of use and/or significant limitation of use”

Try to harmonize this. I cannot do it.

Suboptimal effort?

Morales v Cabral, 2019 NY Slip Op 08516 (1st Dept. 2019)

” Defendant Morales established prima facie that plaintiff did not sustain a serious injury to her cervical spine, lumbar spine or left shoulder in the June 2014 automobile accident through the reports of physicians who examined plaintiff and found no indications of limitations in use of the subject body parts. Although one examiner measured limitations in motion, she opined that these were subjective and unrelated to any objective evidence of injury (see Macdelinne F. v Jimenez, 126 AD3d 549, 551 [1st Dept 2015]). Morales also submitted radiologists’ reports finding either no injury or preexisting conditions and an emergency room medical expert’s finding that plaintiff’s post-accident complaints and treatment were inconsistent with her claims (see De La Rosa v Okwan, 146 AD3d 644 [1st Dept 2017], lv denied 29 NY3d 908 [2017]). Morales further relied on records of plaintiff’s primary care physician, which reflect no contemporaneous complaints by plaintiff and show that plaintiff had a normal range of motion a year after the accident (see Perl v Meher, 18 NY3d 208, 217-218 [2011]). The physician’s records also show that plaintiff ceased treating at that time (see Pommells v Perez, 4 NY3d 566, 574 [2005]).”

The self-imposed ROM continuum

Mondesir v Ahmed, 2019 NY Slip Op 06489 (2d Dept. 2019)

“One of the defendants’ experts found significant limitations in the range of motion of the cervical region of the plaintiff’s spine and failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed (see Singleton v F & R Royal, Inc., 166 AD3d 837, 838; Rivas v Hill, 162 AD3d 809, 810-811; Miller v Ebrahim, 134 AD3d 915, 916; Mercado v Mendoza, 133 AD3d 833, 834; Miller v Bratsilova, 118 AD3d 761).”

How many times have we read the same thing: the ROM limitations are self-imposed.

The stop short paradigm

Niedzwiecki v Yeates, 2019 NY Slip Op 06249 (4th Dept. 2019)

Another Fourth Department case that just makes you think, what the heck. Rear-end collision, which means rear-most driver is liable absent a non-negligent explanation. Here, it was the lead vehicle stopping short. I would note that this explanation in the first and second department without compelling objective evidence that rear-most driver was not negligent or the short stop was unreasonable would not defeat a summary judgment motion.

That said, the Fourth Department says there is a triable issue of fact. This would not be true in downstate New Yorj Anyway, this is where the case just gets crazy.

“Here, plaintiff failed to meet her initial burden on the cross motion inasmuch as she submitted the deposition testimony of defendant, in which he ” provided a nonnegligent explanation for the collision,’ ” i.e., that the collision occurred when plaintiff stopped abruptly in front of his vehicle after a nonparty vehicle suddenly pulled in front of plaintiff’s vehicle (Gardner v Chester, 151 AD3d 1894, 1896 [4th Dept 2017]; see Rosario v Swiatkowski, 101 AD3d 1609, 1609 [4th Dept 2012]). Thus, plaintiff’s own submissions raise “a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision” (Bell v Brown, 152 AD3d 1114, 1115 [3d Dept 2017]; see Rosario, 101 AD3d at 1609-1610; see also Macri, 164 AD3d at 1643; Tate, 125 AD3d at 1398-1399).

We reject defendants’ contention, however, that the court erred in granting the cross motion with respect to the affirmative defense based on the emergency doctrine. Plaintiff met her initial burden of establishing that the emergency doctrine is not applicable to the facts of this case, and defendants failed to raise a triable issue of fact (see generally Shehab v Powers, 150 AD3d 918, 920 [2d Dept 2017]).

Finally, we reject defendants’ further contention that the court erred in granting the cross motion with respect to the affirmative defense of comparative negligence. Plaintiff met her initial burden of establishing that she was free from comparative negligence by submitting evidence that she was required to stop short in front of defendant’s vehicle in order to avoid colliding with the nonparty vehicle that suddenly pulled in front of her vehicle. In opposition, defendants failed to submit “evidentiary proof in admissible form” sufficient to raise an issue of fact to defeat that part of the cross motion (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).”

I would love for this case to be certified to the Court of Appeals.

A 5102(d) case and a jurisdictional riddle of how not to draft a notice of appeal

Cline v Code, 2019 NY Slip Op 06251 (4th Dept. 2019)

I have always said the Fourth Department has some of the more interesting discussions of everyday legal topics with which we deal.

Here, Plaintiff moved for summary judgment on the serious injury threshold. Defendant moved for summary judgment on lack of serious injury. The parties adduced dueling medical affidavits. Supreme Court granted the Defendant’s threshold motion. But the notice of appeal sought to appeal from the denial of the cross-motion.

Very esoteric debate between the four (4) Justice majority and the one (1) Justice dissent.

The salient portion states: ” I cannot agree with the majority’s reading of the notice of appeal as broadly encompassing both defendant’s motion and plaintiff’s cross motion because it essentially ignores the limiting language quoted above. To reach that conclusion, the majority states that it is construing the words in the notice of appeal, “from each and every part,” to mean that plaintiff is also challenging the grant of defendant’s summary judgment motion. In doing this, however, the majority ignores the specific restricting language that follows the word “order,” i.e., “denying” and “[p]laintiff’s [c]ross[ m]otion.” It is one thing to broadly construe ambiguous language; it is another thing entirely to do so in the face of plain, express limiting language to the contrary. “

Anyway, the Plaintiff should have written in its notice of appeal: “Appeal from the order dated ____, and each and every portion as adversely affected thereby…” Less is more folks.

Gaps in treatment and the need for contemporaneous treatment

Jackson v Doe, 2019 NY Slip Op 04765 (1st Dept. 2019)

“Defendant satisfied his prima facie burden of showing that plaintiff did not sustain a serious injury to his cervical spine, lumbar spine or left wrist as a result of the 2013 motor vehicle accident. Defendant’s neurologist found that plaintiff had full range of motion and negative test results in his cervical and lumbar spine, and that any injuries had resolved (see Alverio v Martinez, 160 AD3d 454 [1st Dept 2018]; Frias v Son Tien Liu, 107 AD3d 589 [1st Dept 2013]). Defendant’s expert was not required to review plaintiff’s medical records before forming his opinion (see Mena v White City Car & Limo Inc., 117 AD3d 441[1st Dept 2014]). Defendant also relied on plaintiff’s deposition testimony admitting that he returned to work full-time as a personal trainer within two months of the accident, received just three months of physical therapy and sought no further medical treatment following a November 2014 procedure to his lumbar spine. This testimony both defeats plaintiff’s 90/180-day claim and demonstrates that his injuries were not serious, but were minor in nature (see Castro v DADS Natl. Enters., Inc., 165 AD3d 601, 602 [1st Dept 2018]; Frias v Son Tien Liu, 107 AD3d at 590). Defendant further pointed out that plaintiff was required to explain his extended gap in treatment following the November 2014 procedure (see Pommells v Perez, 4 NY3d 566, 574 [2005]).

In opposition, plaintiff failed to raise a triable issue of fact. He provided no medical evidence of serious injury to his cervical spine or wrist, but only the report of his treating physician, who first examined plaintiff’s lumbar spine six months after the accident. Neither plaintiff nor the physician explained plaintiff’s two separate two-year gaps in treatment (see [*2]Pommells at 576; Alverio v Martinez, 160 AD3d at 455). Furthermore, in the absence of any admissible evidence of contemporaneous, post-accident treatment or evaluation of his alleged injuries, plaintiff failed to raise an issue of fact as to whether his conditions were causally related to the accident (see Santos v Traylor-Pagan, 152 AD3d 406 [1st Dept 2017]; Rosa v Mejia, 95 AD3d 402, 404 [1st Dept 2012]).”

So what happened here? There’s a finding of resolution of injury. The court required that Plaintiff explain gaps in treatment. Moreover, the failure to present evidence contemporaneous to the accident raised an issue of causation.

Now, for those following 5102(d) cases, the Second Department has held that absent prima faice proof of lack of causation, gap in treatment is irrelevant. In addition and in citing Perl, the Second Department does not require treatment contemporaneous with the loss.

Critically, I think it is time for the Second Department to weigh in. This may not be the right case because the Plaintiff’s own evidence refutes a serious injury. But I think a surgery case where there is a gap in treatment or 3 or or more months elapsed prior to treatment occurring would be a good case to take up.

The need for contemporaneous records

Martinez v Keenan, 2019 NY Slip Op 50474(U)(App. Term 2d Dept. 2019)

” We note that, contrary to defendant’s argument, plaintiff was not required to submit a contemporaneous examination to raise a triable issue of fact (see Perl v Meher, 18 NY3d 208, 218 [2011]).”

This is a token 5102(d) appeal from an order not dismissing the complaint. In the Second Department, these appeals usually lose. These threshold motions in the First Department are often dispositive as that Court takes a more technical approach to Plaintiff’s proof in opposition. One of the issues where there is a clear split is the contemporaneous examination. The First Department still requires it; The Second Department never comments on it but we can assume they do not. And the Appellate Term, which rarely gets to rule on these motions since a 325(d) order is usually well post notice of issue, get to explicitly state what we already knew.

Oh, and shout out to my friend Gary Novins. ” Zimmerman Law, P.C. (Gary R. Novins of counsel), for respondent. “

Use of Social Security Findings to establish a threshold injury

Savilo v Denner, 2019 NY Slip Op 01972 (4th Dept. 2019)

Plaintiff lost his threshold motion, which are common in the Fourth Department based upon their rules of establishing liability. But this was an interesting tidbit. ” Although plaintiff submitted a decision of the Social Security Administration in which an administrative law judge (ALJ) concluded that, since the date of the accident, plaintiff has a disability within the meaning of the Social Security [*2]Act, that conclusion was based on the ALJ’s finding that plaintiff has a degenerative disc disease. We therefore conclude that plaintiff was not entitled to judgment as a matter of law with respect to the permanent consequential limitation of use and significant limitation of use categories.”

The what-if’s are mind boggling.

The intersection of Ins Law 5106 and 5102(d)

Ampofo v Key, 2019 NY Slip Op 00559 (1st Dept. 2019)

“Defendants established prima facie that plaintiff’s claimed right ankle and foot sprains were not serious injuries within the meaning of Insurance Law § 5102(d) through affirmed reports by their orthopedist, who documented normal range of motion (see Hernandez v Adelango Trucking, 89 AD3d 407 [1st Dept 2011]; Whisenant v Farazi, 67 AD3d 535 [1st Dept 2009]). They also submitted an affirmed report by an orthopedic surgeon who performed a no-fault peer review, which noted that plaintiff’s MRI reports showed osteoarthritis and other conditions, and opined that the right ankle arthroscopy performed four months after the collision was not medically necessary or causally related to the accident.

The no-fault peer review: If properly performed and utilized, it is a death trap. So I found the file online. The peer review was performed by Dr. Westerband. (He actually lost a threshold case as a plaintiff on a PI action). It has a Geico claim number and the vendor is my next door neighbor MedSource National. The medical rationale would not suffice for most arbitrators, but alas the Appellate Division found it persuasive. LOL?

Threshold not required

Gore v Cardany, 2018 NY Slip Op 08632 (2d Dept. 2018)

“The plaintiff has the burden of establishing damages for past and future lost earnings with reasonable certainty (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris v City of New York, 2 AD3d 782, 784). A plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law § 5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a]; Thomas v Cefola, 99 AD3d 986, 987).”

Here is a case that addresses the issue better –

“While plaintiffs correctly contend that they need not await the full $50,000 payout for basic economic losses from their   first-party no-fault policy before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold, they still failed to establish that plaintiff’s total economic losses here did actually “exceed basic economic loss””  Wilson v Colosimo, 101 A.D.3d 1765, 1767 (4th Dept. 2012)