As we previously reported,  plaintiffs seem to have an advantage with respect to the interpretation of “threshold” injuries under Insurance Law § 5102(d).  If the plaintiff’s doctor addresses and rejects the defendant’s expert reports, a denied threshold motion will likely follow. But, a plaintiff’s doctor cannot simply raise a new injury claim in order to defeat a “threshold” motion.

In, Boone v. Elizabeth Taxi, Inc., the plaintiff was thrown from his bicycle after being hit by defendant’s taxi.  In ensuing litigation, he alleged in his Bill of Particulars that he suffered a cervical spine injury and complained of  bilateral wrist pain.  However, x-rays taken at the time of the accident “apparently were negative” as per the discovery responses. 

The Appellate Division, First Department held that the defendants met their prima facie burden of demonstrating the absence of permanent consequential limitations in use injuries through affirmed expert medical reports finding full range of motion in the cervical spine and wrists, negative test results, and no objective evidence of permanent injury in plaintiff’s cervical spine or wrists.  Further, Defendants also submitted a report by their radiologist opining that plaintiff’s claimed cervical spine injuries were chronic and degenerative, and not causally related to the subject accident.

In his opposition, plaintiff failed to offer evidence of permanent consequential limitations in use of his cervical spine or wrists caused by the accident.   Instead, plaintiff raised for the first time a new serious injury claim under Insurance Law § 5102(d), namely, that he sustained a fracture in his left wrist. In support, he offered the affirmation of a radiologist, who had recently reviewed the post-accident left-wrist MRI and opined that it showed a fracture.  The Appellate Division held that the lower court should not have considered this new serious injury claim, since plaintiff did not plead a fracture injury in the bill of particulars. 

Thus, new injuries, which are not pled in plaintiff’s bill of particulars are insufficient to defeat a “threshold” motion.    

Thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at .