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Defects and shortcomings in submissions from plaintiff's chiropractor; Summary Judgment granted for defendant on serious injury threshold

Thomas v. Crittenden, 2016 WL 6138392 (Sup.Ct. Bronx Cty. 2016)

A Bronx court has granted defendant's motion for summary judgment dismissing Plaintiff's complaint for failure to satisfy the serious injury threshold under Insurance Law section 5102(d), based upon defendant's Neurologist's neurological examination and a report on an MRI of the lumbar spine.

Defendant successfully argued that plaintiff failed to raise a triable issue of fact with its submissions in opposition. Those included two uncertified medical narratives accompanied by an undated statement from a Connecticut chiropractor. The statement provided that it was "sworn to on Feb. ___, [sic] 2016"; however, it failed to state that it was sworn to "under penalties of perjury", and lacked a Certificate of Conformity, as required under CPLR sections 2309(c) and 2106. However, it was not just the formal defects that made the submissions ineffectual. The court found, "Assuming arguendo that said defect may be cured, at most Plaintiff presents that she underwent physical therapy for nine months after the accident, and that she suffered minor soft tissue injury described as: 5% impairment to the cervical and thoracic spine, and 10% impairment to the lumbar spine. Moreover, Plaintiff presents an unexplained four-year gap in treatment, as she last treated in April 2012, four years prior to service of the instant motion. Finally, at her deposition Plaintiff testified she missed two to three days of work following the accident." Thus, the submission failed to rebut defendant's showing that the serious injury threshold was not met.

If you have questions regarding motor vehicle accident defense, or the "serious injury" threshold, contact Dennis J. Monaco at (212) 422-1200.