In recent years, New York Courts have discouraged filing of  “threshold” motions for summary judgment on personal injury motor vehicle accident cases. According to Article 51 of the Insurance Law, a plaintiff injured in a motor vehicle accident must meet the serious injury “threshold” before their claim see a jury.

Among the types of injury that are considering “serious” under Article 51, one is that the injury prevents the plaintiff from customary daily activities for 90 of the first 180 days following the accident. (Now, a cynic may suggest that the 90/180-day rule law essentially created the physical therapy industry, because 6 months of documented PT attendance can defeat a “threshold” motion, but I’m no cynic, so I won’t make that point.)

In DiDomenico v. Kocur, the trial court in Suffolk County granted a defendant’s summary judgment motion, on “threshold” grounds.  The Second Department reversed, and did not even need to examine the substance of plaintiff’s opposition.  The Court found the defendant’s motion failed to make a prima facie showing that the plaintiff’s 90/180-day claim had no merit.  The Court did not opine on specifics, but we suspect the defendant’s motion papers were devoid of references to plaintiff’s immediate post-accident treatment and physical therapy. Thus, the plaintiff’s claim will continue.

“Threshold” motions are laborious to prepare and to oppose, and therefore, time-consuming for courts to decide.  The predominant message now seems to be, “Do not bring a “threshold” motion unless you absolutely have to.”  Motions that are in the “gray area” are being denied more and more often, it seems.  Please email Brian Gibbons with any questions.