Mild, minor, slight

New York’s serious injury threshold under Insurance Law § 5102(d) requires plaintiffs to demonstrate more than just the existence of an injury—they must prove a significant limitation of use or a permanent consequential limitation. The language courts use when dismissing claims—“mild,” “minor,” “slight”—reflects the high bar plaintiffs must clear to overcome summary judgment. These descriptors are not merely rhetorical; they represent the judicial application of quantitative and qualitative standards that distinguish compensable injuries from those that fall short of the statutory threshold.

The requirement that plaintiffs establish both the extent and duration of their limitations creates multiple opportunities for defendants to challenge injury claims. When medical evidence shows normal or near-normal range of motion shortly after an accident, or when physicians cannot explain inconsistencies in their findings, courts will typically grant summary judgment to defendants. This First Department decision illustrates how seemingly minor evidentiary gaps—unexplained fluctuations in range of motion findings, reliance on unaffirmed records, or minimal degree deficits—can prove fatal to a plaintiff’s case.

Case Background

In Cabrera v Apple Provisions, Inc., the plaintiff sought to establish serious injury claims affecting his cervical spine, lumbar spine, and left knee following a motor vehicle accident. The defendant moved for summary judgment, challenging whether the plaintiff’s medical evidence demonstrated injuries meeting the statutory threshold. The trial court denied the motion, but the First Department reversed, finding the plaintiff’s medical proof insufficient across all three claimed injury sites.

The case turned on close examination of the plaintiff’s treatment records and expert medical opinions. The plaintiff’s treating physician documented varying range of motion findings over time, creating inconsistencies that undermined the reliability of her conclusions. For the knee injury, despite evidence of a meniscal tear, the medical documentation revealed only minimal functional limitations that courts have repeatedly found insufficient to constitute serious injury.

Jason Tenenbaum’s Analysis

Cabrera v Apple Provisions, Inc., 2017 NY Slip Op 05044 (1st Dept. 2017)

As to the cervical spine claim, plaintiff’s treating physician found normal range of motion in February 2013, but some limitations a month later. The physician’s failure to explain the inconsistencies between her findings of deficits before and after the findings of full range of motion, renders her opinion speculative (see Santos v Perez, 107 AD3d 572, 574 ; Colon v Torres, 106 AD3d 458 ). As to the lumbar spine, plaintiff’s treatment records showed that he had normal or near-normal lumbar spine range of motion within two months after the accident, which is insufficient to support a serious injury claim (see Gaddy v Eyler, 79 NY2d 955, 957 ; Eisenberg v Guzman, 101 AD3d 505, 506 ).

Regarding the left knee, plaintiff presented medical evidence of a lateral meniscal tear, which his physician stated was causally related to the subject accident. However, his physician failed to make any measurements of his knee, relying on unaffirmed records of his surgeon, which was impermissible (see Malupa v Oppong, 106 AD3d 538, 539 ). In any event, the last measurement found in the surgeon’s records showed only a five-degree deficit in range of motion, which, again, was too minor in extent, degree and duration to support a serious left knee injury claim involving significant limitation of use (see Gaddy v Eyler, 79 NY2d at 957; Vasquez v Almanzar, 107 AD3d 538, 539-540 ).”

Interesting issues. 1) Full ROM at or near time of accident spells doom for later diminishment; 2) 5 degree deficiency in ROM not enough to prove serious injury,

Legal Significance

The Cabrera decision reinforces several well-established principles governing serious injury threshold litigation. First, physicians must be able to explain inconsistencies in their own medical findings. When a treating physician documents normal range of motion at one examination and restrictions at subsequent visits without explaining what changed, courts view the restriction findings as speculative. This requirement stems from the principle that expert medical opinions must be based on facts in the record and supported by medically acceptable reasoning.

Second, the temporal relationship between the accident and medical findings matters significantly. The First Department’s reliance on Gaddy v Eyler, 79 NY2d 955 (1992), underscores that when a plaintiff demonstrates normal or near-normal range of motion within a short time after the accident, later claims of restriction face heightened scrutiny. This principle recognizes that injuries severe enough to meet the statutory threshold typically manifest immediately and do not suddenly appear weeks or months post-accident without intervening trauma.

Third, the decision confirms that minimal degree deficits—such as the five-degree limitation found here—are categorically insufficient to establish serious injury, regardless of other factors. Courts consistently hold that small numerical restrictions do not translate into the type of functional limitations the statute contemplates.

Practical Implications

For plaintiffs’ attorneys, Cabrera serves as a cautionary tale about the importance of consistent, well-documented medical evidence. Treating physicians must maintain careful records that document range of motion findings at each visit and provide explanations when those findings change over time. When physicians rely on other providers’ records, they must ensure those records are properly affirmed and that they conduct their own independent examinations.

The prohibition on relying solely on unaffirmed surgical records creates particular challenges in cases involving orthopedic injuries. Plaintiffs must either secure affirmations of the surgical records or ensure their treating physicians conduct independent examinations that can stand on their own merit.

For defendants, this decision provides a roadmap for challenging injury claims through careful examination of the plaintiff’s medical timeline. Identifying early post-accident findings of normal range of motion, highlighting unexplained fluctuations in medical findings, and demonstrating minimal degree deficits can all provide paths to summary judgment.

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