If you’ve ever felt like New York State’s Automobile Threshold Law is just too confusing or just downright overwhelming to tackle confidently, then this blog post is for you.
Finding ways to be more savvy about what injuries meet threshold, what doesn’t and why is critical, especially if your solo practice or small firm will be broadening its practice so as to increase its personal injury file count. However, while you will likely have no shortage of potential clientele thanks to automobile accidents, if you’re not careful you can waste time and money on cases that may never be eligible for recovery.
Read on if threshold law has always seemed an oblique topic to you, but you need to understand it more thoroughly – this post is perfect for all types of attorneys!
New York State Threshold Law, Explained
The threshold law precludes recovery for non-economic loss such as pain and suffering in an action between covered persons unless the plaintiff pleads and proves a “serious injury” as defined by Insurance Law § 5102(d). See, Insurance Law § 5104(a).
Now, a “covered person” is defined as any owner, operator or occupant of a motor vehicle with New York motor vehicle coverage in effect, as well as a pedestrian injured through the use of a vehicle with New York no-fault coverage in effect.
Please note, the threshold law applies to both bodily injury liability claims and uninsured/underinsured motorist claims.
Why did New York State create the threshold law? The legislative intent behind its creation was to weed out frivolous claims and to otherwise limit recovery for non-economic loss (again, pain and suffering) to only claims that involve significant injuries or, in the parlance of the law, serious injury.
Okay, so what specifically constitutes serious injury? According to New York State Insurance Law § 5102(d), a serious injury is defined as:
- Death
- Dismemberment
- Significant disfigurement
- Fracture
- Loss of fetus
- Permanent and total loss of use of a body organ, member, function or system
- Permanent consequential limitation of use of a body organ or member
- Significant limitation of use of a body function or system
- A medically determined injury or impairment of a non-permanent nature which prevents the injured party 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.
Now…
Basic Economic Loss
Regardless of fault, Basic Economic Loss (up to $50,000) is available to a covered person. That said, an injured party cannot recover Basic Economic Loss from another covered person.
What’s interesting is that an injured party can be compensated for economic loss in excess of Basic Economic Loss, regardless of whether they’ve sustained a serious injury.
In fact, under certain circumstances an injured party can have a claim for economic loss even if the full $50,000 of Basic Economic Loss has not yet been exhausted (i.e., loss of earnings greater than $2,000 per month).
But what exactly constitutes Basic Economic Loss? It is up to $50,000 per person of the combined total of the following items:
- All necessary medical and related expenses, without limitation as to time, provided the need for such services is ascertainable within one year of the date of the accident (i.e., an injury is ascertainable if evidence of the injury is submitted to the insurer within a year of the accident);
- Loss of earnings, up to $2,000 per month, for up to three years from the date of the accident; and
- All other reasonable and necessary expenses, up to $25 a day for not more than one year from the date of the accident (which will typically involve transportation services and housekeeping-related expenses).
See, New York State Insurance Law § 5102(a)(1)-(3).
Now, you may wonder whether the New York State threshold law restrictions apply if the accident itself occurred outside state boundaries. The answer? It does not. The law only applies if the accident arose out of the negligence in the use or operation of a motor vehicle in New York State itself. See, New York State Insurance Law § 5104(a); Ofori v. Green, 74 A.D.3d 474 (1st Dept. 2010); Palumbo v. Carey, 90 A.D.3d 627 (2nd Dept. 2011); and McHenry v. State Insurance Fund, 236 A.D.2d 89 (3d Dept. 1997); [this is the case even when all parties to the accident happen to be New York State residents].
Pleading Requirements
Per CPLR § 3016(g), the plaintiff must plead in their complaint that they sustain a serious injury as defined by New York State Insurance Law § 5102(d) … or that they sustained economic loss greater than Basic Economic Loss as defined by New York State Insurance Law § 5102(a).
In the Bill of Particulars the plaintiff must aver each category of serious injury that they allege to have sustained. See, Martinkus v. Dahmen, 105 A.D.3d 1014 (2nd Dept. 2013).
If you’re acting as defense counsel in such a case, this fact can come in handy, since plaintiff can’t defeat a threshold motion for summary judgment in connection with an injury that has not been specifically pled in their Bill of Particulars. See, Boone v. Elizabeth Taxi, 120 A.D.3d 1142 (1st Dept. 2014).
In fact, if plaintiff’s counsel hasn’t pled one or more injuries in their Bill of Particulars, you, as defense counsel, do not even have to address those injuries in your threshold motion to be successful. See, Boettcher v. Ryder Truck Rental, Inc., 133 A.D.3d 625 (2nd Dept. 2015).
Even better (if you’re representing the defendant), the plaintiff can’t claim a category of serious injury for the first time in opposition to a threshold motion; therefore, once such a motion is filed, it’s too late. See, Stamps v. Pudetti, 137 A.D.3d 1755 (4th Dept. 2016).
Be careful, however–while making a threshold motion for summary judgment, defendant must address every category of serious injury alleged to have been sustained in plaintiff’s Bill of Particulars.
People Lie, The Evidence Doesn’t
The proponent of a motion for summary judgment related to threshold bears the burden of making a prima facie showing on the issue of serious injury; once this has been accomplished, the burden of proof shifts to the opposing party to raise a material issue of fact. See, Quadrozzi v. Salako, 266 A.D.2d 194 (2nd Dept. 1999); Wilkcoxen v. Palladino, 122 A.D.3d 727 (2nd Dept. 2014).
To prevail on a motion for summary judgment, a party’s evidence must be in admissible form, such as an affirmation or affidavit. See, Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
While a plaintiff may not rely on unsworn medical records in order to defeat a motion for summary judgment. See, Graham v. Shuttle Bay, Inc., 281 A.D.2d 772 (1st Dept. 2001), a defendant, in fact, can rely upon unsworn reports of the plaintiff’s own doctors in support of their motion. See, Uribe v. Jimenez, 133 A.D.3d 844 (2nd Dept. 2015); Eishaarawy v. U-Haul Co. of Mississippi, 72 A.D.3d 878 (2nd Dept. 2010); and Newton v. Drayton, 305 A.D.2d 303 (1st Dept. 2003).
Interestingly, per the Appellate Division Fourth Department, defendants can only rely on unsworn medical records if they were provided by plaintiff’s counsel. See, Dumont v. D.L. Peterson, 307 A.D.2d 709 (4th Dept. 2003). However, it has been held that a plaintiff may use unsworn medical records that the defendant used in support of their motion. See, Hazel v. Colon, 136 A.D.3d 483 (1st Dept. 2016); Sutliff v. Qadar, 122 A.D.3d 452 (1st Dept. 2014); and Siemucha v. Garrison, 110 A.D.3d 1398 (4th Dept. 2013).
Please note, a report from a medical doctor who examined the plaintiff at the request of the defendant (i.e., during an independent medical examination) must be affirmed under the penalties of perjury. See, Snare v. Capitaland Taxi, 151 A.D.3d 1338 (3rd Dept. 2017).
As long as they are not the sole basis for opposition, it has been held that the court may consider unsworn medical records in opposition to a threshold motion. See, Ahmed v. Cannon, 129 A.D.3d 645 (1st Dept. 2015); Johnson v. KS Transportation, 982 N.Y.S.2d 15 (1st Dept. 2014); and Pantojas v. Lajara Auto Group, 117 A.D.3d 577 (1st Dept. 2014).
Per CPLR § 2106, an affirmation from a medical doctor or dentist has the same force or effect as an affidavit. Warning: a chiropractor is not competent to submit an affirmation as, say, a medical doctor is; therefore, a chiropractor must submit an affidavit instead. See, Swift v. NYTA, 981 N.Y.S.2d 706 (1st Dept. 2014); Pugsley Chiropractic PLLC v. Merchants Preferred Ins. Co., 50 Misc.3d 139 (A) (1st Dept. Appellate Term 2016); and Hartley v. White, 63 A.D.3d 1689 (4th Dept. 2009).
Whether an affirmation or affidavit would be appropriate, it must be provided by the medical provider themselves and not the Custodian of Records. See, Irizarry v. Lindor, 110 A.D.3d 846 (2nd Dept. 2013). And even though electronic signatures on documentation is becoming more prevalent, whether one would be appropriate in connection with the execution of a doctor’s affirmation depends upon what Appellate Division your client’s case is in. While the First Department allows doctors to use electronic signatures on their affirmations, the Second Department does not. See, Pietropintro v. Benjamin, 104 A.D.3d 617 (1st Dept. 2013); and Martin v. Portexit Corp., 98 A.D.3d 63 (1st Dept. 2012).
When relying upon medical records in a threshold motion, the representations relied upon must be unequivocal. See, Fisher v. Hill, 114 A.D.3d 1193 (4th Dept. 2014) [statement in medical record by plaintiff’s doctor that plaintiff “may have” sustained a fracture is insufficient]; Prince v. Lovelace, 981 N.Y.S.2d 410 (1st Dept. 2014) [defendant doctor’s statement that he “suspected” degenerative changes is insufficient]; Murphy v. Hurdle, 132 A.D.3d 646 (2nd Dept. 2106) [defendant’s doctor’s statement that he saw no proof as to what caused the limitations in the plaintiff’s spine is insufficient].
Inconsistent evidence will be found to be insufficient to prevail when it comes to threshold-based motion practice. See, Cracchiola v. Sausner, [defendant failed to make a prima facie showing on the motion when they submitted medical reports from their examining physicians concluding that plaintiff’s injuries were inconsequential, transient, and attributable to preexisting degenerative conditions…but also submitted medical reports from plaintiff’s treating physician and an examining chiropractor, concluding that plaintiff’s injuries were significant, permanent and causally related to the accident].
Death
The trier of fact must determine that the accident either directly caused the death or that an injury sustained as a result of the accident was a substantial factor in bringing about the death; the injury had such an effect in producing the decedent’s death that a reasonable person would regard the injury as the cause of the death. See, New York Pattern Jury Instruction 2:88D.
Dismemberment
This is generally interpreted to mean the loss of a limb; there is otherwise no independent pattern jury charge specifically setting forth what this category of serious injury is. There is not much case law on this subject, however, one might imagine that a claim of serious injury due to dismemberment would be rather straightforward in nature.
Significant Disfigurement
Compared to dismemberment, significant disfigurement is a category that is open to some interpretation. Per New York State case law on the subject, not just any disfigurement will do; in order for a disfigurement to be considered “significant”, a reasonable person viewing the plaintiff’s body in its altered state must regard the condition as unattractive, objectionable, or caused the injured party to be the object of scorn or pity. See, Sanchez v. Dawson, 120 A.D.3d 933 (4th Dept. 2014); and Cross v. Lombard, 127 A.D.3d 1355 (3rd Dept. 2015).
Keep in mind, the above mentioned “reasonable person” does not include the plaintiff. That means that the plaintiff’s own objective, self-serving assessment of the injury is irrelevant. See, Pecora v. Lawrence, 28 A.D.3d 1136 (4th Dept. 2016). For this threshold-based category of serious injury, however, the disfigurement does not have to be permanent. Id.
Regardless, don’t be shy about making a threshold motion for summary judgment if the category of serious injury in question concerns the alleged significant disfigurement of the plaintiff; while this is normally a determination for a jury, the courts have found that this issue can be determined via motion practice, as well. See, Christopher V. v. James A. Leasing, Inc., 115 A.D.3d 462 (1st Dept. 2014).
Keep in mind that significant disfigurement need not concern one’s face and/or head injuries alone. See, Lewis v. General Electric, 145 A.D.2d 728 (3rd Dept. 1988) [issue of fact as to whether 1.5 inch scar constituted a significant disfigurement]; Cross v. Lombard, 127 A.D.3d 1355 (3rd Dept. 2015) [issue of fact as to whether surgical scars on the left shoulder constituted a significant disfigurement; scar does not have to be a direct result of the accident].
Fracture
This category, like that of dismemberment, is widely considered to be a straightforward matter when it comes to establishing a serious injury pursuant to New York State Insurance Law § 5102(d). There are a few noteworthy issues, nevertheless.
Firstly, a fracture has been defined as a break of a bone or a part of a bone, pursuant to New York State Pattern Jury Instruction 2:88C.
Secondly, the tearing or breaking of cartilage alone does not constitute a fracture. See, Catalan v. Empire Storage Warehouse, 213 A.D.2d 366 (2nd Dept. 1995).
Thirdly, even the tearing of cartilage that covers the end of a bone will not constitute a fracture for purposes of New York State Insurance Law § 5102(d). See, Murray v. Stabile, 44 A.D.3d 726 (2nd Dept. 2007).
In addition, a deviated septum alone will not constitute a fracture pursuant to New York State Insurance Law § 5102(d). See, Ives v. Corell, 211 A.D.2d 899 (3rd Dept. 1995).
Finally, while a chipped tooth that doesn’t require any treatment will not constitute a “serious injury” (see, Epstein v. Butera, 155 A.D.2d 513 (2nd Dept. 1989), where a chipped or fractured tooth does require future medical care and/or dental attention, it will (see, Autiello v. Cummins, 66 A.D.3d 1072 (2nd Dept. 2009)).
Loss Of Fetus
To be clear, this category of serious injury pursuant to New York State Insurance Law § 5102(d) will apply regardless of the duration of the pregnancy in question. See, McKendry v. Thornberry, 872 N.Y.S.2d 658 (Sup. Ct. Rennselear County 2009).
If an abortion is part of the treatment plan, plaintiff must show that it was medically advisable due to the accident. See, Newton v. Drayton, 305 A.D.2d 303 (1st Dept. 2003). However, please note that a premature delivery and birth will not constitute a “loss of fetus” so as to satisfy this threshold-based category. See, Leach v. Ocean Black Car Corp., 122 A.D.3d 587 (2nd Dept. 2014).
Permanent And Total Loss Of Use
In order to satisfy this category, the loss of use must be total and permanent (see, Oberly v. Bangs Automobile, 96 N.Y.2d 295 (2001); see also, Williams v. Jones, 139 A.D.3d 1346 (4th Dept. 2016)); however, losses that are “consequential” or “significant” are not sufficient (see, Geloso v. Monster, 289 A.D.2d 746 (3rd Dept. 2001).
Permanent And Consequential Limitation
To prove a breach of this category to establish a serious injury, something more than a minor, mild or slight limitation of use is required. See, Gaddy v. Eyler, 79 N.Y.2d 955 (1992); see also, Crane v. Glover, 151 A.D.3d 1841 (4th Dept. 2017). Instead, the limitation must be important or significant, as well as permanent. See, Vasquez v. Almanzar, 107 A.D.3d 538 (1st Dept. 2013); McLiverty v. Urban, 131 A.D.2d 449 (2nd Dept. 1987); Countermine v. Galka, 189 A.D.2d 1043 (3rd Dept. 1993); and Lindquist v. Knowledge Systems & Research, Inc., 295 A.D.2d 889 (4th Dept. 2002).
Significant Limitations
There are two ways in which plaintiff’s expert can establish that a limitation is sufficiently significant (or consequential) to breach this category of serious injury:
- The expert must designate a numeric percentage of a plaintiff’s loss of range of motion; or
- The expert must provide a qualitative assessment of a plaintiff’s condition, provided that the evaluation has an objective basis and specifically compares the plaintiff’s limitations to the normal function, purpose and use of the affected organ, member, function or system.
See, Toure v. Avis Rent A Car Systems, 98 N.Y.2d 345 (2022).
Plaintiff’s success will most certainly rise and fall upon the quality of their expert’s affirmation–limitations of range of motion must be based on objective medical tests. See, Bayk v. Martini, 142 A.D.3d 484 (2nd Dept. 2016); and Gorden v. Tibulcio, 50 A.D.3d 460, 855 N.Y.S.2d 515 (2008). That said, a doctor need not be required to utilize any particular instrument when measuring the plaitniff’s range of motion. See, Liz v. Munoz, 149 A.D.3d 646 (1st Dept. 2017).
When it comes to the quantification of range of motion deficits, the doctor must compare the plaintiff’s range of motion to what is normal. See, Mirdita v. Ash Leasing Inc., 101 A.D.3d 480 (1st Dept. 2012); Paul v. Weatherwax, 146 A.D.3d 792 (2nd Dept. 2017); and Pupko v. Hassan, 149 A.D.3d 988 (2nd Dept. 2017).
Granted, there is no bright line rule in New York State case law that specific percentage of limitation is “consequential” or “significant” and sometimes the case law can be contradictory. See, Arrowood v. Lowinger, 294 A.D.2d 315, 742 N.Y.S.2d 294 (1st Dept. 2002) [limitations under 15 percent are generally not deemed to be “significant” or “consequential”]; Decker v. Stang, 243 A.D.2d 1033 (3rd Dept. 1997) [20% overall impairment from two accidents not “significant” or “consequential”]; contrast, Cole v. Allied Waste Industry, 496 F. Supp. 2d 257 (D.N.Y. 2007) [15% limitation of range of motion may, in some instances, be enough to support a finding of a serious injury]; Downie v. McDonough, 117 A.D.3d 1401 (4th Dept. 2104) [a 20% impairment sufficient to establish a serious injury but limitations of range of motion of approximately 10% to 11% are insufficient].
Keep in mind, if plaintiff’s treating physician records inconsistent range of motion deficits, that expert’s opinion will likely be rendered speculative if there is a failure to explain the inconsistencies. See, Snare v. Capitaland Taxi, Inc.,151 A.D.4d 1338 (3rd Dept. 2017); and Rose v. Tall, 149 A.D.3d 554 (1st Dept. 2017).
Qualitative Assessment of Consequential/Significant Limitations
Defense’s IME (independent medical examination) doctor may be able to establish that plaintiff’s limitations of motion are exaggerated if they’d observed the plaintiff prior to formally beginning the examination with a different range of motion than what was exhibited during the course of the formal exam, and such observations can of course help the defendant to make a prima facie showing that the plaintiff did not sustain a serious injury. See, Fraser-Baptiste v. NYCTA, 81 A.D.3d 878 (2nd Dept. 2011).
However, if defendant’s expert fails to explain and/or substantiate the basis for a conclusion that a plaintiff’s restricted range of motion is either self-imposed or exaggerated, then such a conclusion will be insufficient to support defendant’s burden on a motion for summary judgment. See, Castro v. Anthony, 153 A.D.3d 655 (2nd Dept. 2017).
The 90/180 Rule
When it comes to allegations concerning this sort of threshold injury, one must plead that a medically determined injury has been sustained and that the plaintiff was “unable to perform substantially all of the material acts which constitutes such person’s customary and usual daily activities” and that this has been the case for 90 out of the 180 days immediately following the accident.
The plaintiff must demonstrate through objective medical evidence, that the injuries that prevented that individual from performing their daily activities for the statutory time period were directly caused by the accident in question. See, Shea v. Ives, 137 A.D.3d 1404 (3rd Dept. 2016); and Davis v. Cottrell, 101 A.D.3d 1300 (3rd Dept. 2012).
Remember what I wrote earlier in this article? “People lie, the evidence doesn’t.” Therefore, it’s critical that any representations that a plaintiff makes in terms of establishing that their injuries have met threshold thanks to the 90/180 day rule, it must be corroborated with the appropriate evidence. As you may know, self-serving affidavits will not be considered by a court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. See, Lupinsky v. Windham Construction Corp., 293 A.D.2d 317 (1st Dept. 2002); Joe v. Orbit Industries, Ltd., 269 A.D.2d 121 (1st Dept. 2000); and Kistoo v. City of New York, 195 A.D.2d 403 (1st Dept. 1993).
Therefore, plaintiff’s self-serving statement that they missed 90 days from work after the accident, without any evidence to buttress or support said representation, will be found to be insufficient to support a breach of the 90/180 category (in such a case, as counsel for the plaintiff, you would need to provide corroborating objective medical evidence). See, Simpson v. Montag, 81 A.D.3d 547 (1st Dept. 2011); see also, Nieves v. Bus Maintenance Company, 129 A.D.3d 539 (1st Dept. 2015); Acosta v. Zulu Services, Inc., 129 A.D.3d 640 (1st Dept. 2015); Figueroa v. Ortiz, 125 A.D.3d 491 (1st Dept. 2015).
As defense counsel, however, it is acceptable to utilize plaintiff’s self-serving representations against them in a motion for summary judgment seeking to defeat a 90/180 claim. See, Graves v. L & N Car Services, 87 A.D.3d 878 (1st Dept. 2011) [both plaintiff’s admissions in her Bill of Particulars and her deposition testimony that she missed only three weeks of work as a result of the accident in question was sufficient to establish that she did not breach the 90/180 day category of the threshold law]; see also, Adu v. Kirby, 132 A.D.3d 517 (1st Dept. 2015) [defendant made prima facie showing that the plaintiff did not breach the 90/180 category based on plaintiff’s own deposition testimony that no work was missed after the accident]; Corporan v. Erichsen, 148 A.D.3d 549 (1st Dept. 2017) [defendant made prima facie showing under the 90/180 category by submitting evidence that the plaintiff did not miss any work following the accident]; Small v. City of New York, 148 A.D.3d 959 (2nd Dept. 2017) [defendant made prima facie showing that plaintiff did not breach the 90/180 category through plaintiff’s own deposition testimony that they did not miss more than one day of work as a result of the accident at issue]; Carpenter v. Steadman, 149 A.D.3d 1599 (4th Dept. 2017) [defendant made prima facie showing that plaintiff did not breach the 90/180 category by submitting plaintiff’s deposition testimony that the plaintiff did not take off any time from work after the accident, even though she left early on several occasions].
But please note: working on partial duty or light duty is fatal to a 90/180 day claim. See, Dingle v. NYCTA, 139 A.D.3d 513 (1st Dept. 2016); Strenk v. Rodas, 111 A.D.3d 920 (2nd Dept. 2013); Fludd v. Pena, 122 A.D.3d 436 (1st Dept. 2014); and Pakeman v. Karekezia, 950 N.Y.S.2d 378 (1st Dept. 2012).
Favorable for plaintiffs on a 90/180 claim, though, is testimony or evidence that illustrates that plaintiff’s injuries as a result of the accident they were prevented from their usual household duties, participating in recreational activities or engaging in sexual relations for a period exceeding three months following the accident. See, Judd v. Walton, 259 A.D.2d 1016 (4th Dept. 1999).
A definite way to fail to make one’s prima facie burden as to plaintiff’s 90/180 day claim is to follow the fact pattern that occurred in the case of Seepersaud v. L & M Bus Corp., wherein defendants’ experts failed to examine the plaintiff until three years following the date of loss and did not offer an opinion as to plaintiff’s condition during the relevant period; additionally, defendant failed to submit any evidence to disprove plaintiff’s claim that they were confined to home and disabled from work during the relevant 90/180 day period following the accident.
Does Psychological Injury Count?
Yes, it does…however, such an injury must be serious and verifiable, and must also be established by objective medical evidence and must be proven to be “significant” or “consequential”. See, Kranis v. Biederbeck, 83 A.D.3d 903 (2nd Dept. 2011).
As you might imagine, it must be proven that the psychological injury was causally related to the accident (Diaz v. Barimah, 144 A.D.3d 497 (1st Dept. 2016) but otherwise an emotional or psychological injury alone can constitute a serious injury as defined by § 5102(d) of the New York State Insurance Law. See, Fillette v. Lundberg, 150 A.D.3d 1574 (3rd Dept. 2017); and Haque v. City of New York, 97 A.D.3d 636 (2nd Dept. 2012).
What Doesn’t Meet Threshold
It has been held that summary dismissal of a complaint may be appropriate, even when objective medical proof is otherwise available, “when additional contributory factors interrupt the chain of causation between the accident and the claimed injury–such as a gap in treatment, an intervening medical problem or a preexisting condition….” Pommells v. Perez, 4 N.Y.3d 566 (2005).
Certain injuries do not, per se, breach the serious injury threshold, such as an arthritic condition (Strenk v. Rodas, 111 A.D.3d 920 (2nd Dept. 2013)); carpal tunnel syndrome (Baker v. Thorpe, 43 A.D.3d 535 (3rd Dept. 2007)); herniated discs or bulges (Downie v. McDonough, 117 A.D.3d 1401 (4th Dept. 2014) and Applebee v. Beck, 118 A.D.3d 1279 (4th Dept. 2014)); or a tear of a tendon or ligament (Resek v. Morreale, 74 A.D.3d 1043 (2nd Dept. 2010); Mulligan v. City of NY, 120 A.D.3d 1155 (1st Dept. 2014); Acosta v. Zulu Services, 129 A.D.3d 640 (1st Dept. 2015); Green v. Domino’s Pizza, LLC, 140 A.D.3d 546 (1st Dept. 2016); and Corporan v. Erichsen, 148 A.D.3d 549 (1st Dept. 2017)).
Of course, any of these conditions may breach the threshold if the limitations for any of those injuries is total, consequential or significant; but without the evidence establishing the limitations there will be no serious injury found by the court. See, Lopez v. Morel-Ulla, 144 A.D.3d 504 (1st Dept. 2016).
What If There’s A Gap In Treatment?
If there’s a long gap in the plaintiff’s treatment or they terminate treatment, then plaintiff must provide a reasonable explanation for it or their case may fail to meet threshold as a serious injury pursuant to New York State Insurance Law § 5102(d). See, Pommells v. Perez, 4 N.Y.3d 566 (2005); and Paveljack v. Cirino, 93 A.D.3d 1286 (4th Dept. 2012).
If there’s a gap between the accident and the commencement of treatment, that can be found to “interrupt the chain of causation between the accident and [the] claimed injury.” Henry v. Peguero, 72 A.D.3d 600 (1st Dept. 2010).
If you’re representing the defendant, your motion for summary judgment in such a case should demonstrate that at the time the plaintiff ceased treatment, their doctor believed that they would benefit from further additional treatment. See, Lindo v. Brett, 149 A.D.3d 459 (1st Dept. 2017).
In the alternative, an opinion from plaintiff’s doctor that any further treatment would merely be palliative in nature will be provide a reasonable justification for for a gap in treatment. See, MacIntosh v. Sisters Servants of Mary, 105 A.D.3d 672 (1st Dept. 2013); and Ayala v. Cruz, 95 A.D.3d 699 (1st Dept. 2012).
It may not take much for the plaintiff to provide a reasonable explanation for a gap in treatment in order to survive a motion for summary judgment; in the case of Cook v. Peterson, 137 A.D.3d 1595 (4th Dept. 2016), as there was proof the plaintiff’s treating orthopedist provided the plaintiff with both medication and an exercise regimen to be performed in a self-managed fashion, a reasonable explanation was found by the court.
What If There’s A No-Fault Cut Off?
A no-fault cut off will not serve as a reasonable excuse for a gap in treatment where the plaintiff has private health insurance or Medicaid. See, Cruz v. Martinez, 106 A.D.3d 482 (1st Dept. 2013); see also, Smyth v. McDonald, 101 A.D.3d 1789 (4th Dept. 2012); Green v. Domino’s Pizza, LLC, 140 A.D.3d 546 (1st Dept. 2016).
However, a no-fault cut off will offer a reasonable excuse for a gap in treatment in the event that the plaintiff lacks private health insurance. See, Wadford v. Gruz, 77 A.D.3d 491 (1st Dept. 2006).
In the event that a plaintiff’s insurance cannot cover treatment any longer or if their insurance is canceled leaving them unable to pay for additional treatment, either scenario will constitute a reasonable justification for a gap in treatment. See, Stamp v. Pudetti, 137 A.D.3d 1755 (1st Dept. 2017); Gomez v. Davis, 146 A.D.3d 456 (1st Dept. 2017); and Peluso v. Janice Taxi Co., 77 A.D.3d 491 (1st. Dept. 2010).
Causation Issues
It is not enough for the plaintiff to prove that they sustained a serious injury under New York State Insurance Law § 5102(d); they must also prove that the injury is connected to the subject accident as opposed to a pre-existing condition or a different accident or incident. See, Carter v. Full Service, Inc., 29 A.D.3d 342 (1st Dept. 2006).
Mere speculation, conjecture and/or conclusory statements from their expert will be insufficient for plaintiff’s expert to rely upon; plaintiff’s doctor must establish by objective medical evidence that the claimed injuries or aggravated injuries were caused by the subject accident, and not a prior condition or a different accident. See, Dudley v. Imbesi, 121 A.D.3d 1461 (3rd Dept. 2014); and Morafates v. Macchia, 127 A.D.3d 1150 (2nd Dept. 2015).
The aggravation of a pre-existing condition and/or an asymptomatic condition does not preclude recovery by the plaintiff if the accident at issue led to the aggravation. See, Aremalla v. Olson, 134 A.D.3d 1412 (4th Dept. 2015); Colavito v. Steyer, 65 A.D.3d 735 (3rd Dept. 2009); and Armella v. Olson, 134 A.D.3d 1412 (4th Dept. 2015).
While a plaintiff no longer needs to demonstrate quantitative range of motion deficits that are contemporaneous to the accident in order to establish a permanent consequential limitation (or a significant limitation), they still need to offer some form of treatment contemporaneous to the accident in order to establish that their injuries were caused by the accident in question. See, Perl v. Meher, 18 N.Y.3d 208 (2011); and Rosa v. Mejia, 95 A.D.3d 402 (1st Dept. 2012).
In order to establish permanency, the plaintiff must have undergone a recent examination. See, Sukalic v. Ozone, 136 A.D.3d 1018 (2nd Dept. 2016) and Schilling v. Labrador, 136 A.D.3d 884 (2nd Dept. 2016).
A protracted delay between the date of loss and treatment rendered in connection with the alleged injury can lead a court to find same insufficient to demonstrate any causal relationship as between the injury and the accident. See, Michels v. Marton, 130 A.D.3d 476 (1st Dept. 2015) [ten months after the accident is not sufficiently contemporaneous]; Moore-Brown v. Sofi Hacking Corp., 151 A.D.3d 567 (1st Dept. 2017) [eight months after the accident is not sufficiently contemporaneous]; Henchy v. VAS Express Corp., 981 N.Y.S.2d 418 (1st Dept. 2014) [six months after the accident is not sufficiently contemporaneous].
That said, treatment within one month’s time of the accident has been found to be sufficiently contemporaneous. See, Swift v. NYTA, 981 N.Y.S.2d 706 (1st Dept. 2014) and Vandetta v. Adams, 121 A.D.3d 1328 (3rd Dept. 2014).
Damages
If the jury finds that the plaintiff sustained a serious injury, they must make an award for past pain and suffering, see, Nguyen v. Kiraly, 82 A.D.3d 1579 (4th Dept. 2011); but a plaintiff does not have to sustain a permanent injury for the jury to award future damages. See, Rizzo v. DeSimone, 6 A.D.3d 500 (2nd Dept. 2004).
If out of all of the injuries that a plaintiff sustains even one breaches the threshold, then the trier of fact may award damages for all injuries sustained, regardless of whether the remainder of those injuries have breached threshold. See, Vishevnik v. Bouna, 147 A.D.3d 657 (1st Dept. 2017).