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This article is part of our ongoing 5102(d) issues coverage, with 251 published articles analyzing 5102(d) issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
When Medical Records Contradict Expert Testimony
In New York’s no-fault insurance system, plaintiffs seeking to recover damages beyond basic economic losses must prove they sustained a “serious injury” under Insurance Law § 5102(d). This threshold requirement typically involves expert medical testimony to establish the nature and extent of injuries. However, what happens when a plaintiff’s own medical records directly contradict their expert’s conclusions?
A recent Appellate Division case demonstrates how hospital records from the day of an accident can undermine an otherwise strong expert affirmation, creating factual disputes that prevent summary judgment. This scenario highlights the critical importance of thoroughly reviewing all medical documentation before advancing threshold arguments, as inconsistencies in medical records can prove fatal to a case.
The intersection of medical evidence and legal strategy becomes particularly complex when dealing with diagnostic imaging and contemporaneous medical assessments versus later expert interpretations.
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In support of the plaintiff’s cross motion, she relied upon, inter alia, Dr. Westreich’s affirmation, which was sufficient to meet her prima facie burden of showing that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, inasmuch as she sustained a fractured nose. In opposition, the appellants raised a triable issue of fact as to the existence of a fracture on the day of the accident and, thus, whether the accident caused a fractured nose. In this respect, the appellants relied upon, inter alia, the plaintiff’s hospital records, which revealed that the CT scan of her head on the day of the accident was “unremarkable.”
This case is interesting because the Appellate Division, in a 5102(d) matter, looked to see if the injured persons medical records contradicted the affirmation of the injured person’s expert. This does not happen too frequently in no-fault practice, as we learned in Co-Op City Chiropractic, P.C. v. Mercury Ins. Group, 26 Misc.3d 145(A)(App. Term 2d Dept. 2010) and Infinity Health Products, Ltd. v. Mercury Ins. Co., 26 Misc.3d 142(A)(App. Term 2d Dept. 2010).
Key Takeaway
This case serves as a crucial reminder that expert affirmations must be supported by, not contradicted by, contemporaneous medical records. When hospital records from the accident date directly conflict with expert testimony, courts will find triable issues of fact that prevent summary judgment motions from succeeding, regardless of how well-credentialed the expert may be.
Legal Update (February 2026): Since this post’s publication in 2010, New York’s serious injury threshold standards under Insurance Law § 5102(d) may have evolved through appellate decisions and regulatory interpretations, particularly regarding the weight given to contemporaneous medical records versus expert testimony. Practitioners should verify current case law developments and any amendments to threshold analysis standards when evaluating medical record inconsistencies in no-fault cases.
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Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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