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Battle of the Experts Leads to Denial of Motion for Summary Judgment

August 28, 2020 • Posted By Maria Stamatelatos • Insurance Coverage

           On June 24, 2020, Hon. Debra Sliber, J.S.C. of Kings County issued a decision on the Perry v. 31 Northern Blvd, Inc. case. This was a personal injury action arising out of a motor vehicle accident that took place on July 14, 2018 at the intersection of Norstrand Avenue and Martense Street in Brooklyn, New York. When the accident occurred, plaintiff was a passenger in a taxi owned by defendant 31 Northern Blvd., Inc. and operated by defendant Laguerre, which was involved in an accident with a vehicle owned by defendant Century Waste Services, LLC and operated defendant Galicia-Sarmiento. Plaintiff, who was seventy-one years old at the time of the accident, declined medical attention at the scene and the driver took her home. The day after the accident, plaintiff called an ambulance and was taken to the emergency room at Downstate University Hospital. Plaintiff alleged in her Bill of Particulars that as a result of the accident, she sustained injuries to her cervical and lumbar spine, both hips, knees and both hands.

             Defendants moved and cross-moved for summary judgment to dismiss the complaint, arguing that plaintiff did not sustain a “serious injury” as defined by Insurance Law § 5102(d). In support of their motion, defendants submitted the pleadings, plaintiff’s deposition transcript, and affirmed reports from an orthopedist and a radiologist. Additionally, regarding the 90/180-day category of injury, defendants argue that plaintiff testified she was never confined to her bed, and therefore defendants meet the 90/180 requirement as per § 5102(d).

             Orthopedist Dr. Dana Mannor examined plaintiff on October 10, 2019. Dr. Mannor concluded that plaintiff sustained sprains and strains as a result of the accident, and that they have fully resolved. He further opined that “there [was] no evidence of an orthopedic disability, permanency or residuals.” Additionally, Dr. Mannor noted that plaintiff used a cane to ambulate and stated that “there [was] evidence of contributing pre-existing arthritis in bilateral knees.”

             Radiologist Dr. Mark Decker reviewed MRIs of plaintiff’s right knee, lumbar spine and cervical spine. He noted that plaintiff had degenerative disc disease in her spine, and listed her many bulges and herniations, concluding that “[t]hese findings are all long standing and not causally related to the date of accident on 7/14/2018. [There is] no evidence to suggest that an acute traumatic injury was sustained.” Dr. Decker further noted that plaintiff had abnormalities in her right knee, but concluded that these were also unrelated to the accident.

             The Court found that Defendants “failed to make a prima facie showing that plaintiff was not prevented from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 of the 180 days following the accident.” The Court further found that plaintiff provided medical evidence which overcomes the motion and raised a triable issue of fact. Plaintiff provided an affirmation by Dr. Yolande Bernard which summarized plaintiff’s treatment and concluded “[i]t is in my opinion within a reasonable degree of medical certainty that the plaintiff has sustained significant and permanent injuries to the cervical spine, lumbosacral spine, left hip and right knee … The patient’s prognosis for a full and complete recovery remains poor.” Plaintiff also provided an affirmation from a radiologist who concluded that plaintiff had “an intermediate grade partial thickness tear at the origin of the common hamstring tendon” in her left hip.

             The Court concluded that these conflicting reports created a “battle of the experts” and raised a triable issue of fact as to whether plaintiff sustained a “serious injury” as a result of the accident. Accordingly, defendants motions were denied.

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