Doron Avgush v. Jerry Fontan, Inc. and Gerardo Fontan, Index No. 20734/2012E (Sup.Ct. Bronx Cty. August 29, 2016)

Plaintiff was rear-ended while driving on the Sawmill River Parkway in September 2011 and commenced an action for personal injuries, alleging spasmodic dysphonia, tongue dystonia and torticollis resulting in permanent loss of vocal cords and/or speech, as well as other injuries and loss of mobility, dignity and independence. However, investigation revealed that the plaintiff had had a prior auto accident 15 years earlier that had led to other litigation in which the plaintiff alleged the same injuries to his vocal cords and a speech impairment.

Defendants made a threshold motion for summary judgment, submitting reports of three physicians in support of the contention that the Plaintiff failed to satisfy the ‘serious injury’ threshold under Insurance Law section 5102(d). These included the report of an examining otolaryngologist, who found no evidence of permanent injury or residuals other than “chronic hoarseness”. In opposition to defendants’ motion, the Plaintiff did not demonstrate admissible evidence of an objective and quantitative evaluation demonstrating significant limitations to the normal function, purpose and use of a body organ, member, function or system sufficient to raise a material issue of fact. Plaintiff’s treating physician had not conducted a recent examination. Thus, there was no evidence addressing defendants’ physicians’ findings that the claimed symptoms were preexisting and not causally related to the accident.

In an amended bill of particulars, plaintiff had alleged a traumatic brain injury based upon the narrative report and findings of a treating physician. Such a claim, when established at trial, and accepted by a Bronx jury, can have the potential for a verdict in the seven figure range. In such cases, an effective motion for summary judgment can be critical for the defendant.

Abrams Gorelick’s auto defense team, partner Irwin Miller and associates Dennis Monaco and Jay Gunsher, secured the defendants’ victory.