In order to maintain a lawsuit based upon a personal injury sustained in a motor vehicle accident, a plaintiff’s injury must be “serious” under Section 5102 of New York Insurance Law.
As a practical matter, if a defendant moves for summary judgment, plaintiffs are well-advised to respond with an affidavit from a medical expert, usually an orthopedist, to comment on the plaintiff’s residuals and to demonstrate a “triable issue of fact” as to the seriousness of the injury. In recent years, it has become increasingly difficult for defendants in motor vehicle accident litigation to prove, on papers, that a plaintiff did not sustain a serious injury. A well-crafted plaintiff’s expert affidavit has become the lynchpin of the plaintiff’s response to a “threshold” motion.
In Werthner v. Lewis, multiple defendants actually succeeded in dismissing a plaintiff’s suit on “threshold” grounds – but this success was short-lived. Last month, the Second Department reversed the dismissal and remanded the matter to Suffolk Supreme Court. Notably, the Court did not even comment on the specifics of plaintiff’s injury. Rather, the Court refers to the plaintiff’s alleged “increased post-accident symptomology,” which the defendant’s expert conceded in his own report. This concession defeated defendant’s obligation to establish, in their moving papers, that plaintiff did not sustain a serious injury.
The salient point of Werthner, and other recent “threshold” decisions, is that the Appellate Division seems to be discouraging “threshold” motions by consistently finding either issues of fact or discrepancies in defendants’ expert reports that render summary judgment inappropriate. Absent a legitimate pre-existing injury, subsequent lapse in treatment or intervening injury, a plaintiff’s opposition containing the correct “catch words” has a good chance to defeat a defendant’s threshold motion. That the Second Department does not reference the specifics of plaintiff’s injury suggests that the injury matters less than how the opposition is crafted.