Ogando, et al. v. National Freight, Inc., et al., ___ A.D.3d ___ (1st Dep’t 2018)

A unanimous Appellate Division panel affirmed the Bronx court’s Decision dismissing a motor vehicle accident Complaint, agreeing that neither of the two plaintiffs who were allegedly injured in the subject automobile accident had sustained a “serious injury” required under Insurance Law section 5102(d).

As previously reported in Newswire (June 6, 2017), plaintiffs were passengers in a vehicle driven by one defendant, which collided with a vehicle owned and operated by the other defendants. Each alleged damage to the cervical and lumbar spine. One also complained of posttraumatic arthritis. Each alleged home and bed confinement.

The Appellate Division found that Defendants made a prima facie showing that neither plaintiff met the statutory serious injury threshold. As to the first plaintiff, his MRI report showed multilevel degenerative disc disease. His expert failed to raise an issue of fact tying the injuries to the accident. Moreover, the expert failed to address a prior motor vehicle accident, and plaintiff himself provided inconsistent explanations for his complete cessation of treatment.

As to his co-plaintiff, her testimony showed she stopped treatment when doctors advised it was no longer necessary. At that time, she had normal range of motion. Her expert only documented a five degree limitation in one plane of motion, which was insufficient to establish serious injury under the statute.

Abrams Gorelick associate James Kimmel briefed the respondents’ opposition to the appeal.