In Wesley v Crown Masonry, plaintiff sued for personal injuries that she allegedly sustained in a motor vehicle accident.  Plaintiff alleges supraspinatus tendinosis, bursitis, and a tear of the rotator cuff.   At the close of discovery, defendants moved for summary judgment on the “serious injury” threshold.

The Honorable Peter H. Mayer of the Supreme Court, Suffolk County, granted the motion and dismissed plaintiff’s case.  The reasoning helps to remind litigants on both sides of the difficulties that plaintiff’s face when opposing motions for summary judgment.

In defendants’ motion, an affidavit of defendants’ physician was provided which found that plaintiff had regained full range of motion and was not disabled.  The Court found that this met defendants’ prima facie burden of establishing the lack of a statutorily defined “serious injury”.  The burden then shifted to plaintiff.  Despite an affidavit from a physician, and annexed medical report notes, the Court found that plaintiff could not rebut defendants’ prima facie case because the medical reports were unsworn, and the affidavit relied upon those unsworn reports.  Further, the Court found that plaintiff’s self-serving affidavit which stated that she faced limitations like at work for at least 90 out of the 180 days post-accident was insufficient to establish a “serious injury” for at least 90/180 days post-accident.

At times it appears that the Court has strayed from the initial legislative purpose of the “No-Fault Law” – to provide injured parties in motor vehicle accidents with insurance through their auto policies, and not burden the Court with unnecessary litigation.  This ruling reminds us to diligently prepare all auto accident cases for “serious injury”, even cases that result in tears, as one cannot presume that a diagnosis found in discovery will later be admissible in motion practice.

Thanks to Christopher Gioia for his contribution to this post.  Please contact Tony Pinto for more information.