Ogando, et al. v. National Freight, Inc., et al., 309337/2012 (Sup.Ct. Bronx Cty. May 30, 2017)

A Bronx court dismissed a Complaint pursuant to Insurance Law section 5102(d), finding that neither of the two plaintiffs who were allegedly injured in the subject automobile accident had sustained a “serious injury” under the categories of permanent loss, permanent consequential limitation, or 90/180-day injury.

Plaintiffs were passengers in a vehicle driven by one defendant, which collided with a vehicle owned and operated by the other defendants. Each alleged she had sustained damage to the cervical and lumbar spine. One also complained of posttraumatic arthritis. Each alleged home and bed confinement.

Defendants showed that neither plaintiff sustained a “serious injury”, based upon reports of the examining orthopedist and neurologist, as well as Plaintiffs’ bill of particulars and deposition transcripts.

Plaintiffs’ medical records submitted in opposition were inadmissible, and there was no proof of due diligence in obtaining reports of any other examining physicians. Reports of a neurologist and radiologists who had recently examined the plaintiffs also failed to raise a triable issue of fact, because they failed to account for a prior injury from an earlier accident, or a pre-existing degenerative disease. Thus, they could not connect findings to the subject accident.

Finally, deposition testimony was used to refute claims under the 90/180-day provision. Both plaintiffs acknowledged that they were not restricted to home or bed for any significant length of time following the accident, and their subjective complaints as to limitations failed to raise an issue of fact.

Abrams Gorelick partner Dennis J. Monaco briefed and argued the motion.