Key Takeaway
How defendants can defeat 5102(d) serious injury threshold claims under aggravation and exacerbation theories - Boroszko v Zylinski case analysis
This article is part of our ongoing 5102(d) issues coverage, with 89 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.
Boroszko v Zylinski, 2016 NY Slip Op 04830 (4th Dept, 2016)
In the realm of a complaint seeking to breach the serious injury threshold where significant limitation permanent consequential is pleaded in the BP, under an exacerbation and aggravation theory, how does a defendant knock out a case (or part of case) on threshold grounds?
Leave it to the upstate Appellate Divisions to divine on these issues, and it is interesting enough for me to share on here:
“The physician and the radiologist opined that plaintiff’s complaints following the second accident were the same as those prior to that accident, that plaintiff’s MRIs and X rays—which showed degenerative changes—were unchanged after the second accident, and that there was no evidence of posttraumatic injuries to plaintiff’s cervical or lumbar spine following the second accident (see Garcia v Feigelson, 130 AD3d 498, 499; Heatter v Dmowski, 115 AD3d 1325, 1326; Pina v Pruyn, 63 AD3d 1639, 1639; Faso v Fallato, 39 AD3d 1234, 1234). Although plaintiffs correctly note that the physician documented limited range of motion in plaintiff’s cervical spine upon his examination of her, the Peca defendants’ submissions also included a December 2010 chiropractic record that the physician reviewed. That chiropractic record showed that plaintiff had essentially the same levels of decreased range of motion just weeks before the January 2011 accident, and thus established that there was no aggravation or exacerbation of plaintiff’s condition as a result of the second accident.”
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Since two MVA’s were included in the action, the second one was dismissed and the first one remains.
One last thought. A lot of insurance carriers take the position that someone with priors will have a difficult time proving their case. This case shows the perils of aggravation/exacerbation cases when there are priors close in time. The situation of more remote priors and an injured person worse than their baseline should be remembered.
But one line of defense does not work on an aggravation and exacerbation theory: the biomechanical defense. This assumes the person could not be injured due to the forces. An aggravation and exacerbation case assumes prior injury and an eggshell Plaintiff. This disallows reliance on a biomechanical defense.
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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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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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