Fourth Department on Serious Injury
May 27, 2007
At issue in Mc Carthy v Bellamy, 2007 NY Slip Op 0338, was whether the trial court properly denied the defendants' motioin for summary judgment.
The plaintiff commenced the lawsuit seeking damages for injuries to her cervical spine allegedly sustained as a result of a motor vehicle accident. The defendants subsequently brought a motion for summary judgment on the grounds that the plaintiff failed to allege serious injury.
The Fourth Department concluded that the motion should have been granted:
"E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury——such as a gap in treatment, an intervening medical problem or a preexisting condition——summary dismissal of the complaint may be appropriate... Here, the record establishes that in 1999 plaintiff complained of left-sided neck pain that had persisted for three months, resulting in an x-ray showing "minimal spondylosis" and "possible minor cervical degenerative disease." Plaintiffs' failure to acknowledge or address that preexisting condition in opposition to the motion renders the opinion of plaintiffs' expert "speculative"...
We likewise agree with defendants that plaintiffs' failure to explain a 15-month gap in plaintiff's treatment renders summary judgment dismissing the complaint appropriate...(Internal citations and quotations omitted).
I suppose the lesson to be learned from this case, assuming the plaintiff's response to the defendants' motion is characterized accurately, is that it's probably not a good idea to ignore your opponents' assertions. Simply setting forth facts which establish serious injury without addressing the alleged weaknesses in your case is probably unwise--at least in the Fourth Department and most certainly in this case.
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