Barry McTiernan & Moore
  • Our Firm
    • Practice Areas
    • Locations & Contact
  • Attorneys
  • News & Press
  • Careers
  • Our Firm
    • Practice Areas
    • Locations & Contact
  • Attorneys
  • News & Press
  • Careers

Auto Case Dismissed on ‘Serious Injury’ Threshold Despite Treating Doctor Affidavits

August 25, 2020

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.

Recent News & Press

  • Suzanne Halbardier panelist at Perrin Conferences New York Asbestos Litigation virtual 2020
  • Cara Manz elected to firm Partnership
  • Alex Malino Named Managing Partner at Barry McTiernan and Moore
  • Celebrating the Holiday in the spirit of our community
  • Cara Manz is recognized by peers and was selected to Rising Stars 2021

News & Press Archive

  • January 2021
  • December 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • October 2018
  • September 2018
  • May 2018
  • February 2018
  • November 2017
  • October 2017
  • August 2016
  • April 2016
  • October 2015
  • April 2015
  • April 2014
  • November 2013
  • April 2012
  • March 2012
  • August 2011
  • July 2011
  • June 2011
  • April 2011
  • October 2010

Copyright © by Barry McTiernan & Moore LLC. All rights reserved. Disclaimer