In a motor vehicle accident case, Torres v. Gamma Taxi Corp., the defendant taxi company moved for summary judgment on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). A prior motion for the same relief was denied, due to “triable issues of fact” regarding causation. After the denial of its initial motion, however, defendant discovered that the plaintiff had been involved in two previous motor vehicle accidents resulting in similar injuries.

The Court heard defendant’s subsequent motion on the merits, despite the earlier denial, because plaintiff’s “lack of candor” at his deposition was the reason defendant did not earlier know about the prior accidents.

The Court then granted defendant’s new motion because the expert reports indicated that plaintiff’s injuries were not caused by the subject accident, and that plaintiff’s current allegations were “mere recurrences of the earlier symptoms.” Plaintiff’s experts failed to raise an issue of fact as to causation.

The salient point here is the work done by the defendant’s attorneys, adjusters and investigators to uncover plaintiff’s pre-existing condition, despite plaintiff’s denial of any such condition at his deposition. The Court does not opine on how the defendant obtained this information. The Court could have ruled that such information should have been obtained earlier, and thus denied the motion to reargue on those grounds. In any event, in this case, substantial digging and investigation resulted in a dismissed claim.

Thanks to Brian Gibbons for his contribution.

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