In order to overcome a defendant’s motion for summary judgment due to the absence of a serious injury in a motor vehicle accident, a surgeon’s conclusory report about plaintiff’s injury will not suffice.  A plaintiff must raise a triable issue of fact through admissible evidence supporting their claim of a serious injury.

In Walker v Whitney, the Appellate Division, First Department granted defendants’ motion for summary judgment on “threshold” grounds, because plaintiff did not sustain serious injuries pursuant to Insurance law § 5102[d].

In support of the his motion for summary judgment, defendant submitted the affirmed reports of an orthopedist and neurologist who found that the MRI films showed degenerative disc diseases in the spine, mild acromio-clavicular joint osteoarthritis in the shoulder, and no evidence of causally related injury.

In opposition, the plaintiff submitted no admissible medical evidence in support of his claim of a serious injury. He only submitted is an affirmation from the plaintiff’s orthopedic surgeon, who had not examined the plaintiff since their surgery, which indicated that plaintiff has a “decreased range of motion in his left shoulder.” But the surgeon failed to provide measurements of the actual range of motion and a normal range of motion for comparison. The surgeon also did not provide any evidentiary support for his conclusory statement that the injury was related to the accident.

The Court concluded that the surgeon’s affirmation does not raise any questions of fact as to whether the plaintiff suffered a “permanent consequential limitation” in the use of a body function or system. In order for a plaintiff to overcome defendant’s motion for summary judgment, they will have to provide than just a conclusory report stating there was a serious injury.  Had the surgeon done a more thorough job in addressing ranges of motion, and also addressing the causation issues presented in defendant’s motion, this case would probably be on the trial calendar right now.  Thanks to Jason Kosek for his contribution.  Please email Brian Gibbons with any questions.