Motor Vehicle Accident: Court Unanimously Affirms Summary Judgment in Favor of Defendants for Lack of “Serious Injury” Under Insurance Law Section 5102(d)

April 9, 2018

Koneski v. Seppala (N.Y. App. Div. 4th Dept.)

Maurice L. Sykes Esq. and Henry A. Zomerfeld, Esq.


In Koneski, plaintiff was involved in a rear-end car accident in the Batavia, New York and allegedly sustained, among other injuries, a labral tear to his right hip.  Plaintiff brought suit claiming several categories of “serious injury” under Insurance Law section 5102(d), including permanent loss of use of a body, function, or system; permanent consequential limitation of use; significant limitation of use; and a medically determined injury or impairment which prevented plaintiff from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days following the occurrence of the injury or impairment.


Defendants moved for summary judgment on the grounds that plaintiff did not sustain a “serious injury” within any of the claimed categories under Insurance Law section 5102(d).  The parties submitted expert affidavits.  The defendants’ expert opined that the onset of pain in plaintiff’s right hip approximately five days after the accident was consistent with a prior degenerative condition that became symptomatic spontaneously and was not consistent with an acute, traumatic labral tear in the right hip sustained in the accident.  Plaintiff’s treating orthopedic surgeon opined it was more likely than not that a spontaneous symptomatic hip injury did not occur and that the labral tear in the right hip observed in post-accident MRI resulted from the accident.  On December 21, 2016, the Supreme Court, Genesee County (Grisanti, A.J.), granted defendants’ motion for summary judgment on the grounds of permanent loss of use, permanent consequential loss of use, and significant limitation, and denied defendants’ motion as to the 90/180-day impairment category, such that the 90/180-day impairment category was the only remaining viable claim of “serious injury.”  Plaintiff appealed.


Plaintiff’s appeal was limited to the decision concerning the categories of permanent consequential limitation of use and significant limitation of use.  (The claim under the permanent loss of use category was abandoned.)  Notwithstanding the conflicting medical opinions submitted by the parties, the issue on appeal was whether plaintiff’s medical records supported the allegations raised or whether the objective medical evidence demonstrated that plaintiff’s alleged injuries were nothing more than minor, mild, or slight, rendering them insignificant or inconsequential within the meaning of Insurance Law section 5102(d).  This was particularly notable in that plaintiff, just over a month after the accident, exhibited normal abduction, adduction, and external rotation, and only a slightly diminished flexion and internal rotation within ten degrees of normal range of movement.  In addition, plaintiff’s orthopedic surgeon evaluated plaintiff eight months after the accident and showed that plaintiff exhibited full flexion without pain, as well as external and internal rotation within normal range of movement.


On February 2, 2018, the Appellate Division, Fourth Department, unanimously affirmed the Supreme Court decision granting summary judgment in favor of defendants.  While the Court found a question of fact as to causation given defendants’ expert’s opinion that the alleged injury was degenerative in nature, the Court held that plaintiff’s range-of-motion measurements were insignificant as a matter of law and that plaintiff ultimately did not have a “serious injury” under the statute in the two “serious injury” categories at issue on appeal.