David Wysnewski of our New York office successfully obtained a dismissal in favor of our clients, the owners of a parking garage and the driver of their car, in a motor vehicle accident based on New York’s serious injury threshold. Section 5102(d) of the New York Insurance Law requires that a motor vehicle plaintiff must sustain certain threshold injuries before a suit may go forward. Injuries which meet the requirements of the statute include death, dismemberment, fracture, permanent loss of the use of a body organ, member, function or system and 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.”
Here Plaintiff alleged that our client’s vehicle struck his vehicle in the rear while he was stopped in traffic. Plaintiff claimed serious neck and back injuries. Through aggressive discovery, Mr. Wysnewski established that plaintiff had similar treatment before the alleged accident. The Court dismissed plaintiff’s lawsuit, finding that plaintiff failed to prove a serious injury under the New York State Insurance Law despite the production of two affidavits by plaintiff’s treating doctors in opposition to the summary judgment motion.
Aggressive defense of auto cases still works in New York. Although Courts tend to be liberal with their interpretation of the proof when deciding “serious injury” claims under Section 5102(d), especially where plaintiff opposes the motion with affidavits of their treating doctors. This case shows that these claims can be defended and defeated with aggressive discovery and motion practice. Congratulations to David on the hard fought win.