Olivare v. Tomlin, Index No. 303336/2016 (Sup. Ct. Bronx Cty. 2019)

In a fact-sensitive motion involving multiple physician affirmations and party testimony, Plaintiff’s auto accident claims were dismissed by a Bronx Court after defendant showed that plaintiff did not sustain a “serious injury” within the meaning of Insurance Law section 5102(d).

Plaintiff alleged he had sustained various injuries in a 2016 motor vehicle accident. The alleged injuries included trauma and damage to his shoulder, knee and cervical and lumbar spine.

Nine categories of injuries make up the definition of “serious injury” under Insurance Law section 5102(d), and without showing an injury within one of these nine, a motor vehicle accident plaintiff’s action is barred.

Plaintiff’s allegations did not raise any of the most outwardly observable categories, such as dismemberment, significant disfigurement or permanent loss of use of a body organ, member, function or system. Thus, plaintiff had to rely upon more nebulous categories within the definition, “permanent consequential limitation of use of a body organ or member”; “significant limitation of use of a body function or system”; or the time-driven category of “a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” In a case with these definitions at issue, measurements of movement and time become crucial.

Defendant showed that no such permanent consequential limitation or significant limitation existed, based upon affirmations of two examining defense physicians, as well as plaintiff’s own treating physician. Using an angle-measuring instrument called a goniometer, the examining defense orthopedic surgeon had taken range-of-motion measurements of plaintiff’s shoulder, knee and cervical and lumbar aspects of his spine, and found that plaintiff had full ranges of motion in most measured planes, with only minor limitations in a few other planes. Various “objective provocative tests” yielded negative results. Records and reports showed that plaintiff’s alleged sprain and strain injuries were resolved.

In opposition, Plaintiff presented the affirmation of a treating orthopedic surgeon, but his report addressed only the alleged knee injury and did not compare the ranges of motion to normal. Further the findings were in contrast to the doctor’s earlier reports that showed full range of motion in the knee. The Court found the affirmation conclusory and lacking needed explanations, descriptions and comparative data. Thus, the Court found the opposition insufficient to raise a triable issue of fact as to the existence of any serious injury.

In addition, defendant showed that the claim of a “90/180-day injury” should be rejected based upon plaintiff’s allegations in his bill of particulars and deposition testimony that clearly showed that plaintiff’s normal activities were not curtailed for 90 days out of the first 180 days following the accident.

Abrams Gorelick associate Jay S. Gunsher represented defendant and briefed and argued the motion.