Motor Vehicle Accident: Polak v. Glassman (N.Y. Sup. Ct., Erie Co.)

December 31, 2017

by Melissa A. Foti, Esq.


In Polak, plaintiff sought damages for injuries she allegedly sustained in a rear-end motor vehicle accident near a toll barrier on the New York State Thruway.  Plaintiff alleged low back and neck injuries including two herniated lumbar discs, lumbar radiculopathy ultimately requiring a triple-level lumbar fusion with instrumentation, bladder control issues due to the lumbar disc injury, several cervical herniations with the need for future cervical surgery, and migraines.  Plaintiff claimed “serious injury” under the permanent consequential limitation, significant limitation, and 90/180 categories under Section 5102(d) of the New York Insurance Law.


At trial, plaintiff argued to the jury that the defendant was negligent and that the accident caused her injuries, including the need for back surgery and recommended neck surgery.   Defendants argued this was a low-speed impact with minimal damage to plaintiff’s vehicle, and that plaintiff’s complaints were due to her longstanding, documented, prior degenerative condition in her lumbar and cervical spine.


The trial included seven days of proof from many witnesses.  As to negligence witnesses, plaintiff called herself and the reporting State Trooper, while defendants called the driver of the motor vehicle.  As to damages witnesses, plaintiff called several physicians (including both of her treating chiropractors and her treating neurosurgeon) to testify as damages witnesses.  Plaintiff also subpoenaed a physician who had conducted a No-Fault IME and whose testimony was video-recorded prior to the trial; however, plaintiff chose not to play the video for the jury.  Plaintiff also called her nephew, who testified that the injuries resulting from this accident altered plaintiff’s personal life.  Plaintiff also called the mechanic who repaired the defendant’s vehicle to testify about the actual cost of the repair versus what was on the invoice, arguing that the property damage was more severe than reflected.   Defendants also called damages witnesses including an independent medical doctor/neurosurgeon, a radiologist, and a biomedical expert.  Defendants also played the video testimony of the No-Fault physician.


After less than an hour of deliberation, the jury found the defendant was negligent for the accident, but that the plaintiff did not sustain a qualifying “serious injury” as defined by Section 5102(d) of the New York Insurance Law, under any category alleged (i.e., finding 5-1 as to no significant limitation and unanimously as to the permanent consequential limitation and 90/180 categories).