Key Takeaway
Court rules knee surgery including ACL reconstruction doesn't meet NY serious injury threshold when medical records show full strength and range of motion post-surgery.
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.
Travis v Batchi, 2010 NY Slip Op 05862 (1st Dept. 2010)
“The examination records of plaintiff’s own treating physician/expert show that she had full strength and range of motion in the knee both a few weeks and a few months after the accident, after he performed a right knee ACL reconstruction, partial medial and lateral meniscectomy and chrondroplasty.” “he negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion prepared a few years after the accident.”
I found this case last week but forgot to report it. I have this fascination with surgery cases not beating threshold. Just look at the surgery that was done in this case. This was significantly more than the arthroscopic procedure we always see in our practice. Had this gone to trial, you could imagine a $500,000 + non-economic damages verdict.
My first observation, and this is a reoccurring theme here, is that gratuitous “affidavits of merit” are without any probative value if controverted by the medical record before the motion court. This is an important point, and one I am trying to push up the appellate ladder in the no-fault context. The saying goes: “it is what it is”. If the assignor’s medical chart fails to discern ROM restrictions, etc., then why should an affidavit that contradicts the medical record raise an issue of fact?
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My second observation, and one that the defense bar should be astute to is more pragmatic. Is sacrificing threshold and allowing a Bronx jury to adjudicate a case like this worth the savings the carriers might obtain through the proposed no-fault reform bills that are out there? I think the saying goes: pick your poison.
As a public service message, make sure you stay hydrated if you are going outside and exerting any physical activity.
By the way, the court got this once right on the mark, and the defense did a wonderful job in defeating this potential disaster.
Related Articles
- Knee Surgery for ACL and Meniscus Tears: Understanding the Serious Injury Threshold in New York Personal Injury Cases
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Legal Update (February 2026): Since this 2010 analysis of serious injury threshold standards, Court of Appeals decisions and legislative amendments may have refined the evidentiary standards for medical affirmations and the weight given to contemporaneous medical records versus subsequent expert affidavits. Additionally, insurance regulation changes and updates to PIP coverage thresholds could affect how such cases are evaluated, and practitioners should verify current provisions regarding the sufficiency of medical evidence in serious injury determinations.
Legal Context
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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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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