“Threshold” Motions harder to come by in NY

Last year in December 2011 we reported that the Court of Appeals rejected a rule that would make “contemporaneous quantitative measurements” a requirement in demonstrating a serious physical injury in a New York motor vehicle accident lawsuit. See Perl v. Meher, 18 NY3d 208 (2011). As a result, range of motion tests are not necessary immediately after an accident in order to prove a serious physical injury. The Court reasoned that a post-injury treating physician is concerned abut treatment of symptoms, as opposed to range of motion tests. The ramifications of this ruling are significant, because plaintiffs now need less evidence to demonstrate serious physical injury.

The implications of this previous ruling were felt in the recent decision of Njie v. Thompson. New York Supreme Court Judge Silver granted defendant’s threshold motion under NY. Ins. Law §5102, because plaintiff’s range of motion was presently normal, and his MRI revealed no tears. The First Department reversed, because plaintiff’s initial treating physician diagnosed a shoulder tear, establishing the requisite causation. Plaintiff’s trial expert found some limitation in ROM.
The Njie court held that under Perl, no further contemporaneous tests were required to defeat defendant’s threshold motion. The Perl decision seemingly gives courts another basis upon which to deny (or discourage the filing of) threshold motions, as evidenced by its decision in Njie.
Thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com