In Batista v Porro, a pedestrian plaintiff was struck by a motor vehicle. The trial court denied the defendant’s summary judgment motion made on the basis of plaintiff’s failure to meet the serious injury “threshold,” pursuant to Insurance Law § 5102(d). The First Department reversed, and dismissed plaintiff’s claim due to lack of proof of such an injury.
As we have reported in the past (See http://blog.wcmlaw.com/2013/05/uncertainty-world-threshold-motions-ny/) recent interpretation of “threshold” injuries provides plaintiffs with a distinct advantage. If the plaintiff’s doctor addresses and rejects the defendant’s expert reports, a denied threshold motion will likely follow.
In Batista, the plaintiff complained of a right knee injury for which he had arthroscopic surgery. The defendant’s medical expert examined the plaintiff and documented no deficits in range of motion of the knee. Moreover, he opined that the operative report contained findings consistent with plaintiff’s age and preexisting condition. Plaintiff’s medical report did not rebut these findings and was, thus, insufficient to raise a triable issue of fact. Although the plaintiff claimed that he was unable to do everyday activities, he did not have objective medical evidence to substantiate his claims. Thus, under the circumstances, the plaintiff could not vault the threshold.
Special thanks to Brian Gibbons for his contribution.
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