In Malupa v. Oppong et al, the First Department unanimously affirmed the dismissal of the plaintiff’s complaint on threshold grounds. The plaintiff alleged injuries stemming from a motor vehicle accident, and the defendants moved to dismiss because plaintiff had not sustained a “serious injury,” under NY Ins. Law Section 5102.   The defendants cited reports from their orthopedist and neurologist, who, after examining plaintiff, found full range of motion and no residuals, along with a radiological report noting only pre-existing degenerative conditions.

Plaintiff failed to raise a triable issue of fact, despite his doctor’s affidavit noting range of motion restrictions, albeit minor ones.  Moreover, the plaintiff’s physician does not address causation or the degenerative conditions noted by defendants.

Conversely, last year in Njie v. Thompson, 2012 NY Slip Op 06564 the First Department denied a threshold motion because plaintiff’s initial treating physician diagnosed a shoulder tear, and plaintiff’s trial expert found some limitation in ROM.

These two decisions hardly provide a roadmap on how to [prevail on a threshold motion, especially in light of similar present ROM findings in each case.  We surmise that, had the plaintiff’s doctor in Malupa simply addressed the causation and degenerative issues referenced by the defendant’s doctors, the Court would have been forced to follow Njie and deny the Oppongs motion, based upon a triable issue of fact between the doctors.

Going forward, if a defendant’s doctors can identify pre-existing degenerative conditions, these should obviously be cited to disrupt the causal link between the accident and the alleged injury.  However, the ball then seems to be in the plaintiff’s court.  If the plaintiff’s doctor addresses and rejects the defendant’s reports, a denied threshold motion will likely follow.

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at .