Key Takeaway
Expert testimony undermined in 5102(d) serious injury case when EMG/NCV study missing critical conclusion page showing radiculopathy - Fourth Department analysis
Crewe v Pisanova, 2015 NY Slip Op 00041 (4th Dept. 2015)
(on to permanent consequential/significan limitation)
“Defendants’ expert opined that plaintiff did not have a serious injury within the meaning of those two categories, based upon his examination of plaintiff and his review of plaintiff’s medical records. The expert concluded, inter alia, that plaintiff did not sustain a serious injury because she did not have radicular pain. In addition, however, defendants submitted an electromyography study of plaintiff in support of their motion, indicating that plaintiff suffered from “moderate chronic left C5-6 radiculopathy.” Further, when defendants’ expert reviewed plaintiff’s medical history, it was admittedly missing the first page of that electromyography study. That is the page containing the conclusion that plaintiff has “moderate … radiculopathy,” and we thus conclude that the basis for the expert’s conclusion was thereby undermined.”
(on to 90/180)
SLOPPY EBT: “To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined injury or impairment of a non-permanent nature … as well as evidence that plaintiff’s activities were curtailed to a great extent” (Zeigler v Ramadhan, 5 AD3d 1080, 1081 ; see Licari v Elliott, 57 NY2d 230, 236). Here, defendants rely on plaintiff’s deposition testimony addressing how her activities were curtailed as of the time of the deposition, over a year after the accident, rather than how they were curtailed during the relevant statutory period….”
More than $50,000 in basic economic loss (recovery limitation): “laintiff[] correctly contend that need not await the full $50,000 payout for basic economic losses … before making a claim under Insurance Law § 5102 (a) for those additional economic losses that exceed the basic economic loss threshold” (Wilson v Colosimo, 101 AD3d 1765, 1767; see generally Montgomery v Daniels, 38 NY2d 41, 47-48; Colvin v Slawoniewski, 15 AD3d 900, 900; Barnes v Kociszewski, 4 AD3d 824, 825; Watkins v Bank of Castile, 172 AD2d 1061, 1062). Here, the three-year period in which plaintiff may accrue economic loss in excess of basic economic loss, as set forth in Insurance Law § 5102 (a) (2), commenced on the date of the accident and had not yet elapsed when the motion was decided. Therefore, summary judgment on this ground was premature.”
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Legal Update (February 2026): Since this 2015 post, New York’s no-fault insurance regulations and fee schedules have undergone periodic updates, and Insurance Law § 5102(d) serious injury threshold interpretations continue to evolve through case law. Additionally, procedural requirements for expert testimony and medical evidence standards may have been refined through subsequent appellate decisions and regulatory amendments. Practitioners should verify current provisions of Insurance Law § 5102(d) and review recent case developments regarding expert testimony requirements and medical documentation standards.
