State of New York
Supreme Court : County of Monroe

- against -

Index No. 1998/4818

ANDREW V. SIRACUSE, J.

Shortly before the scheduled trial of this motor vehicle case the defendant has moved to dismiss for the plaintiff's alleged failure to establish serious physical injury, as required by the Insurance Law. The defendant offered no evidence from an IME or any affidavits from physicians engaged on her behalf. Instead, she relies entirely on the plaintiff's medical reports. She argues that the plaintiff has failed to show that his claimed injuries were proximately caused by the accident, and that he has failed to show that he suffered a medically determined injury that prevented him from performing substantially all of his usual daily activities for 90 of the 180 days immediately following the accident.

The defendant has failed to establish her entitlement to summary judgment on either ground. The medical records do not present a strong case for the seriousness of the plaintiff's injuries, or for their causal link to the accident; the hospital records state that x-rays showed a compression fracture of the T11 vertebral body which "may be acute in this patient with recent clinical history of MVA [motor vehicle accident]." The very language used by the radiologist, however, establishes that at the very least there remains a question of fact on proximate cause; the connection cannot be ruled out as a matter of law.

Furthermore, medical testimony is not required for a finding of proximate cause, and even accidents which generate no more than subjective complaints of pain without objective medical findings, and which would therefore be barred under the no-fault law, may still be considered actionable under common law, and the pain would be considered to have been caused by the accident. Given that the plaintiff's evidence must be accepted as true, and all favorable inferences drawn from from that evidence, it is clear that the plaintiff's action may proceed.

Defendant's argument on the serious injury threshold suffers from a different defect. As a statute in derogation of the common law, the no-fault law is strictly construed, and in a summary judgment posture it is incumbent upon the defendant to disprove serious injury, not on the plaintiff to establish a prima facie case. In all cases where the defendant has prevailed in a summary judgment motion to dismiss for failure to satisfy the threshold, the defendant had first proffered affirmative proof that the plaintiff had suffered no serious injury (see, e.g., Gaddy v Eyler, 79 NY2d 955; Russell v Knop, 202 AD2d 959 [4th Dept] ["defendant had the initial burden to make an evidentiary showing that plaintiff had not sustained a serious injury as a matter of law"]; Grossman v Wright, decided May 11, 2000 [2d Dept]). Here the defendant has made no such showing, instead relying on the plaintiff's supposed failure to establish a prima facie case. As the decisions cited above state, the plaintiff has this burden in a summary judgment posture only after the defendant has established his or her case.

While the plaintiff's medical records could be stronger, they do not allow the court to conclude as a matter of law that he did not suffer a serious physical injury. For this reason the defendant's motion is denied, with costs. This decision shall serve as the order, and may be filed in the County Clerk's Office as such. Jury selection and the trial of this case will proceed as scheduled.

DATED: Rochester, New York

May 17, 2000

Andrew V. Siracuse, J.S.C.

Shortly after this decision was rendered this case settled.

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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