In Chery v. Jones, the plaintiff sued to recover for personal injuries sustained in an automobile accident. The trial court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s complaint. On appeal, the Appellate Division, Second Department, held that plaintiff’s submissions in opposition to defendant’s motion for summary judgment were not substantive enough to meet plaintiff’s burden of proving serious injury under Insurance Law § 5102 (d).

In Chery, the plaintiff submitted affirmations of all the treating physicians, including the examining orthopedist and radiologist. The affirmations were based on medical examinations conducted three years prior to the defendant’s motion for summary judgment. The affirmation of the plaintiff’s orthopedist also failed to address the findings of the defendant’s examining radiologist, which stated that there were no post-traumatic damages, but only long-standing degenerative conditions. Finally, the plaintiff failed to provide the court with competent medical evidence that he was unable to perform substantially all of his usual and customary daily activities for not less than 90 of the first 180 days subsequent to the subject accident.

The court held that plaintiff’s submissions, including the three-year-old medical examinations relied upon in affirmations, did not raise a triable issue of fact. The court affirmed the lower court’s order granting the defendant’s motion for summary judgment.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03859.htm