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Physical limitations and their duration unsupported by objective proof; defendant driver entitled to summary judgment on serious injury threshold

Sook Hee Park v. Young O. Park and Michael Papadakis, Index No. 310492/2009 (Sup. Ct. Bronx Cty., May 21, 2013)

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The Honorable Ben R. Barbato issued a Decision and Order granting summary judgment dismissing the Summons and Complaint of the plaintiff on the grounds that plaintiff did not sustain a serious injury as defined by the New York State Insurance Law §5102(d).

Plaintiff alleged numerous injuries resulting from a motor vehicle accident with the defendant, including knee ACL sprain; knee contusion; knee sprain/strain; C and L disc herniations; C and L disc bulges; post traumatic cervical strain/sprain; and Lumbar radiculopathy. Defendant met the initial burden of proof on the motion and established that plaintiff failed to sustain a "serious injury" by submitting the affirmed medical reports from an orthopedist and a neurologist, who examined plaintiff and found full ranges of motion in all planes of movement of plaintiff's cervical and lumbar spine. The doctors opined the plaintiff was not under a disability and was capable of all activities of daily living without restrictions or limitations.

Justice Barbato held, "it is the presentation of objective proof of the nature and degree of a plaintiff’s injury which is required to satisfy the statutory threshold for 'serious injury'. Therefore, disc bulges and herniated disc alone do not automatically fulfill the requirements of Insurance Law §5102(d). Plaintiff must still establish evidence of the extent of her purported physical limitations and its duration."

The motion was briefed and argued by AGF&J partner Irwin Miller and associate Dennis Monaco.