In order to maintain an action arising from an automobile accident, a New York plaintiff must prove that he has suffered a “serious injury” as defined in the State Insurance Law. Failure to meet this burden results in dismissal of plaintiff’s case.

In Delfino v. Luzon, plaintiff claimed to have suffered a “serious injury” to his left shoulder and lumbar spine. The defendant moved for summary judgment and submitted an affirmation from a radiologist who reviewed MRI films (and not just the reports) of the plaintiff’s shoulder and lumbar spine, and found normal structures with only degenerative defects. The defendant also submitted an affirmation from an orthopedist, who conducted a physical examination of plaintiff and found full range of motion. The orthopedist further concluded that plaintiff’s operation on his left shoulder, which occurred shortly after the accident, was performed in order to correct a congenital condition.

In opposition, plaintiff submitted an affirmation from a non-treating physiatrist who listed specific numeric losses of range of motion, but failed to describe what tests were used or any objective basis to substantiate his assessments. The Court found the plaintiff’s affirmation lacked objective findings and failed to address the findings of defendant’s experts that plaintiff’s conditions were congenital.

The Appellate Division ultimately reversed the lower court’s decision denying defendant’s motion for summary judgment and dismissed the complaint.

Thanks to Robin Green for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00317.htm